CREDIT AGREEMENT
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Exhibit 10.1
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EXECUTION COPY
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dated as of
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December 4, 2012
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among
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FOREST LABORATORIES, INC.,
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as the Company,
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FOREST LABORATORIES HOLDINGS LIMITED
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and
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FOREST LABORATORIES IRELAND LIMITED,
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as Irish Borrowers,
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FOREST FINANCE B.V.,
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as a Dutch Borrower,
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FOREST LABORATORIES UK LIMITED,
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as a UK Borrower,
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FOREST LABORATORIES CANADA INC.,
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as a Canadian Borrower,
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The Other Foreign Subsidiary Borrowers Party Hereto
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The Lenders Party Hereto
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JPMORGAN CHASE BANK, N.A.
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as Administrative Agent
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FIFTH THIRD BANK
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as Syndication Agent
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and
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BANK OF AMERICA, N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, MORGAN STANLEY SENIOR FUNDING, INC., U.S. BANK NATIONAL ASSOCIATION and THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
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as Co-Documentation Agents
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X.X. XXXXXX SECURITIES LLC and FIFTH THIRD BANK
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as Joint Bookrunners and Joint Lead Arrangers
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Definitions
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SECTION 1.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Defined Terms
SECTION 1.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Classification of Loans and Borrowings
SECTION 1.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Terms Generally
SECTION 1.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Accounting Terms; GAAP
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ARTICLE II
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The Credits
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SECTION 2.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Commitments
SECTION 2.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Loans and Borrowings
SECTION 2.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Requests for Revolving Borrowings
SECTION 2.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Determination of Dollar Amounts
SECTION 2.05.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Swingline Loans
SECTION 2.06.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Letters of Credit
SECTION 2.07.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Funding of Borrowings
SECTION 2.08.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest Elections
SECTION 2.09.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Termination and Reduction of Commitments
SECTION 2.10.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Repayment of Loans; Evidence of Debt
SECTION 2.11.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Prepayment of Loans
SECTION 2.12.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Fees
SECTION 2.13.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest
SECTION 2.14.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Alternate Rate of Interest
SECTION 2.15.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Increased Costs
SECTION 2.16.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Break Funding Payments
SECTION 2.17.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Taxes
SECTION 2.18.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Payments Generally; Pro Rata Treatment; Sharing of Set-offs
SECTION 2.19.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Mitigation Obligations; Replacement of Lenders
SECTION 2.20.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Expansion Option
SECTION 2.21.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Market Disruption
SECTION 2.22.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Judgment Currency
SECTION 2.23.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Designation and Termination of Foreign Subsidiary Borrowers
SECTION 2.24.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Senior Debt
SECTION 2.25.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Defaulting Lenders
SECTION 2.26.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest Act (Canada), Etc
Β
ARTICLE III
Β
Β
Β
Β
Representations and Warranties
Β
SECTION 3.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Organization; Powers; Subsidiaries
SECTION 3.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Authorization; Enforceability
SECTION 3.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Governmental Approvals; No Conflicts
SECTION 3.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Financial Condition; No Material Adverse Change
SECTION 3.05.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Properties
SECTION 3.06.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Litigation and Environmental Matters
SECTION 3.07.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Compliance with Laws and Agreements
SECTION 3.08.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Investment Company Status
SECTION 3.09.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Taxes
SECTION 3.10.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ERISA; Non-U.S.Β Pension Plans
SECTION 3.11.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Disclosure
SECTION 3.12.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Federal Reserve Regulations
SECTION 3.13.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Liens
SECTION 3.14.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Default
SECTION 3.15.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Burdensome Restrictions
SECTION 3.16.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Dutch Financial Supervision Act
SECTION 3.17.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Irish Companies Acts
SECTION 3.18.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β USA Patriot Act
SECTION 3.19.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Embargoed Persons
Β
ARTICLE IV
Β
Β
Β
Β
Conditions
Β
SECTION 4.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Effective Date
SECTION 4.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each Credit Event
SECTION 4.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Designation of a Foreign Subsidiary Borrower
Β
ARTICLE V
Β
Β
Β
Β
Affirmative Covenants
Β
SECTION 5.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Financial Statements and Other Information
SECTION 5.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notices of Material Events
SECTION 5.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Existence; Conduct of Business
SECTION 5.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Payment of Obligations
SECTION 5.05.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Maintenance of Properties; Insurance
SECTION 5.06.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Books and Records; Inspection Rights
SECTION 5.07.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Compliance with Laws and Material Contractual Obligations
SECTION 5.08.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Use of Proceeds
Β
ARTICLE VI
Β
Β
Β
Β
Negative Covenants
Β
SECTION 6.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subsidiary Indebtedness
SECTION 6.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Liens
SECTION 6.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Fundamental Changes and Asset Sales
SECTION 6.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Investments, Loans, Advances, Guarantees and Acquisitions
SECTION 6.05.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Swap Agreements
SECTION 6.06.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Transactions with Affiliates
SECTION 6.07.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Restricted Payments
SECTION 6.08.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Restrictive Agreements
SECTION 6.09.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subordinated Indebtedness and Amendments to Subordinated Indebtedness
DocumentsΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 72
SECTION 6.10.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Financial Covenants
Β
ARTICLE VII
Β
Β
Β
Β
Events of Default
Β
Β
ARTICLE VIII
Β
Β
Β
Β
The Administrative Agent
Β
Β
ARTICLE IX
Β
Β
Β
Β
Miscellaneous
Β
SECTION 9.01.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notices
SECTION 9.02.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Waivers; Amendments
SECTION 9.03.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Expenses; Indemnity; Damage Waiver
SECTION 9.04.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Successors and Assigns
SECTION 9.05.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Survival
SECTION 9.06.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Counterparts; Integration; Effectiveness
SECTION 9.07.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Severability
SECTION 9.08.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Right of Setoff
SECTION 9.09.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Governing Law; Jurisdiction; Consent to Service of Process
SECTION 9.10.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β WAIVER OF JURY TRIAL
SECTION 9.11.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Headings
SECTION 9.12.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Confidentiality
SECTION 9.13.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Material Non-Public Information
SECTION 9.14.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β USA PATRIOT Act; AML Legislation
SECTION 9.15.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest Rate Limitation
SECTION 9.16.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Advisory or Fiduciary Responsibility
SECTION 9.17.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Attorney Representation
Β
ARTICLE X
Β
Β
Β
Β
Cross-Guarantee
Β
Β
Β
SCHEDULES:
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Schedule 2.01
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--
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Commitments
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Schedule 2.02
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--
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Mandatory Cost
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Schedule 2.06
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--
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Existing Letters of Credit
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Schedule 3.01
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--
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Subsidiaries
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Schedule 6.01
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--
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Existing Indebtedness
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Schedule 6.02
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--
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Existing Liens
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Schedule 6.04
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--
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Company Investment Policy
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EXHIBITS:
Β
Exhibit A
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--
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Form of Assignment and Assumption
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Exhibit B-1
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--
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Form of Opinion of the Companyβs Special U.S. Counsel
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Exhibit B-2
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--
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Form of Opinion of the Irish Borrowersβ Special Irish Counsel
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Exhibit B-3
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--
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Form of Opinion of the Dutch Borrowerβs Special Dutch Counsel
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Exhibit B-4
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--
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Form of Opinion of the UK Borrowerβs Special UK Counsel
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Exhibit B-5
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--
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Form of Opinion of the Canadian Borrowerβs Special Canadian Counsel
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Exhibit C
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--
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Form of Increasing Lender Supplement
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Exhibit D
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--
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Form of Augmenting Lender Supplement
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Exhibit E
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--
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List of Closing Documents
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Exhibit F-1
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--
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Form of Borrowing Subsidiary Agreement
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Exhibit F-2
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--
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Form of Borrowing Subsidiary Termination
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Exhibit G-1
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--
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Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)
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Exhibit G-2
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--
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Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)
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Exhibit G-3
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--
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Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)
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Exhibit G-4
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--
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Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)
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Exhibit H-1
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--
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Form of Borrowing Request
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Exhibit H-2
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--
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Form of Interest Election Request
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CREDIT AGREEMENT (this βAgreementβ) dated as of December 4, 2012 among FOREST LABORATORIES, INC., FOREST LABORATORIES HOLDINGS LIMITED, FOREST LABORATORIES IRELAND LIMITED, FOREST FINANCE B.V., FOREST LABORATORIES UK LIMITED, FOREST LABORATORIES CANADA INC., the other FOREIGN SUBSIDIARY BORROWERS from time to time party hereto, the LENDERS from time to time party hereto, BANK OF AMERICA, N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, MORGAN STANLEY SENIOR FUNDING, INC., U.S. BANK NATIONAL ASSOCIATION and THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Co-Documentation Agents, FIFTH THIRD BANK, as Syndication Agent and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
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The parties hereto agree as follows:
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I.Β Β Β Β Β Β
Β
Β
Definitions
Β
A.Β Defined Terms
Β
.Β Β As used in this Agreement, the following terms have the meanings specified below:
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βABRβ, when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.
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βAdjusted LIBO Rateβ means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the sum of (i) (a) the LIBO Rate for such Interest Period multiplied by (b)Β the Statutory Reserve Rate plus, without duplication, (ii)Β in the case of Loans by a Lender from its office or branch in the United Kingdom or any Participating Member State, the Mandatory Cost.
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βAdministrative Agentβ means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder, and any successor Administrative Agent appointed pursuant to Article VIII.
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βAdministrative Questionnaireβ means an Administrative Questionnaire in a form supplied by the Administrative Agent.
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βAffected Foreign Subsidiaryβ means any Foreign Subsidiary Borrower to the extent such Foreign Subsidiary Borrower acting as a guarantor under ArticleΒ X would cause a Deemed Dividend Problem.
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βAffiliateβ means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
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βAggregate Commitmentβ means the aggregate of the Commitments of all of the Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof.Β Β As of the Effective Date, the Aggregate Commitment is $750,000,000.
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βAgreed Currenciesβ means (i)Β Dollars, (ii)Β euro, (iii)Β Pounds Sterling, (iv)Β Canadian Dollars and (v)Β any other currency that is agreed to by the Administrative Agent and each of the Lenders; provided that at all times each of the foregoing currencies (other than Dollars) is (x)Β a lawful currency that is readily available and freely transferable and convertible into Dollars, and (y)Β available in the London interbank deposit market.
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βAlternate Base Rateβ means, for any day, a rate per annum equal to the greatest of (a)Β the Prime Rate in effect on such day, (b)Β the Federal Funds Effective Rate in effect on such day plus Β½ of 1% and (c)Β the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, (i) for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service) at approximately 11:00Β a.m. London time on such day and (ii) if the Adjusted LIBO Rate is not ascertainable for any day, the Alternate Base Rate shall be determined without regard to clause (c) above.Β Β Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
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βApplicable Payment Officeβ means, (a)Β in the case of a Canadian Revolving Borrowing, the Canadian Payment Office and (b)Β in the case of a Eurocurrency Borrowing, the applicable Eurocurrency Payment Office.
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βApplicable Percentageβ means, with respect to any Lender, the percentage of the Aggregate Commitment represented by such Lenderβs Commitment; provided that, in the case of SectionΒ 2.25 when a Defaulting Lender shall exist, βApplicable Percentageβ shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lenderβs Commitment) represented by such Lenderβs Commitment.Β Β If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lenderβs status as a Defaulting Lender at the time of determination.
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βApplicable Rateβ means, for any day, with respect to any Eurocurrency Loan, any BA Equivalent Loan, any ABR Loan or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption βEurocurrency/BA Equivalent Spreadβ, βABR Spreadβ or βCommitment Fee Rateβ, as the case may be, based upon the Leverage Ratio applicable on such date:
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Β |
Leverage Ratio:
Β
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Eurocurrency/
BA Equivalent
Spread
Β
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ABR Spread
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Commitment Fee
Rate
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Category 1:
Β
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< 0.50 to 1.00
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1.25%
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0.25%
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0.15%
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Category 2:
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> 0.50 to 1.00 but
< 1.50 to 1.00
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1.50%
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0.50%
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0.20%
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Category 3:
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> 1.50 to 1.00 but
< 2.50 to 1.00
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1.75%
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0.75%
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0.25%
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Category 4:
Β
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> 2.50 to 1.00
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2.00%
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1.00%
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0.30%
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For purposes of the foregoing,
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(i) if at any time the Company fails to deliver the Financials on or before the date the Financials are due pursuant to SectionΒ 5.01, Category 4 shall be deemed applicable for the period commencing three (3)Β Business Days after the required date of delivery and ending on the date which is three (3)Β Business Days after the Financials are actually delivered, after which the Category shall be determined in accordance with the table above as applicable;
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(ii) adjustments, if any, to the Category then in effect shall be effective three (3)Β Business Days after the Administrative Agent has received the applicable Financials (it being understood and agreed that each change in Category shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change); and
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(iii) notwithstanding the foregoing, Category 1 shall be deemed to be applicable until the Administrative Agentβs receipt of the applicable Financials for the Companyβs first fiscal quarter ending after the Effective Date (unless such Financials demonstrate that Category 2, 3 or 4 should have been applicable during such period, in which case such other Category shall be deemed to be applicable during such period) and adjustments to the Category then in effect shall thereafter be effected in accordance with the preceding paragraphs.
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βApproved Fundβ has the meaning assigned to such term in SectionΒ 9.04.
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βAssignment and Assumptionβ means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by SectionΒ 9.04), and accepted by the Administrative Agent, in the form of ExhibitΒ A or any other form approved by the Administrative Agent.
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βAugmenting Lenderβ has the meaning assigned to such term in SectionΒ 2.20.
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βAvailability Periodβ means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.
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βAvailable Revolving Commitmentβ means, at any time with respect to any Lender, the Commitment of such Lender then in effect minus the Revolving Credit Exposure of such Lender at such time; it being understood and agreed that any Lenderβs Swingline Exposure shall not be deemed to be a component of the Revolving Credit Exposure for purposes of calculating the commitment fee under SectionΒ 2.12(a).
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βBA Equivalentβ, when used in reference to any Loan or Borrowing, means that such Loan bears, or the Loans comprising such Borrowing bear, interest at a rate determined by reference to the BA Rate.
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βBA Rateβ means, with respect to any Interest Period for any BA Equivalent Revolving Loan (a)Β in the case of any Lender named in ScheduleΒ I of the Bank Act (Canada), the rate per annum determined by the Administrative Agent by reference to the average annual rate applicable to Canadian Dollar bankersβ acceptances having a term comparable to such Interest Period quoted on the Reuters Screen βCDOR Pageβ (or such other page as may replace such page on such screen for the purpose of displaying Canadian interbank bid rates for Canadian Dollar bankersβ acceptances) at 10:00Β a.m. on the date of the commencement of such Interest Period (the βCDOR Rateβ) and (b)Β in the case of any other Lender, the sum of (A)Β the CDOR Rate plus (B)Β 0.10%.Β Β If such rates do not appear on the Reuters Screen at such time, the CDOR Rate shall be the rate of interest determined by the Administrative Agent that is equal to the average (rounded upwards to the nearest 1/100 of 1%) quoted by the banks listed in ScheduleΒ I of the Bank Act (Canada) in respect of Canadian Dollar bankersβ acceptances with a term comparable to such Interest Period.
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βBanking Servicesβ means each and any of the following bank services provided to the Company or any Subsidiary by any Lender or any of its Affiliates:Β Β (a)Β credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b)Β stored value cards and (c)Β treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).
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βBanking Services Agreementβ means any agreement entered into by the Company or any Subsidiary in connection with Banking Services.
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βBankruptcy Eventβ means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
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βBoardβ means the Board of Governors of the Federal Reserve System of the United States of America.
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βBorrowerβ means the Company or any Foreign Subsidiary Borrower.
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βBorrowingβ means (a)Β Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans or BA Equivalent Loans, as to which a single Interest Period is in effect or (b)Β a Swingline Loan.
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βBorrowing Requestβ means a request by any Borrower for a Revolving Borrowing in accordance with SectionΒ 2.03 in the form attached hereto as Exhibit H-1.
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βBorrowing Subsidiary Agreementβ means a Borrowing Subsidiary Agreement substantially in the form of Exhibit F-1.
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βBorrowing Subsidiary Terminationβ means a Borrowing Subsidiary Termination substantially in the form of Exhibit F-2.
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βBurdensome Restrictionsβ means any consensual encumbrance or restriction of the type described in clauseΒ (a) or (b)Β of SectionΒ 6.08.
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βBusiness Dayβ means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, (i)Β when used in connection with a Canadian Revolving Loan, the term βBusiness Dayβ shall also exclude any day on which banks are required or authorized by law to close in Toronto, Canada and (ii)Β when used in connection with a Eurocurrency Loan, the term βBusiness Dayβ shall also exclude any day on which banks are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term βBusiness Dayβ shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in euro).
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βCanadian Benefit Planβ means any plan, fund, program, or policy, whether oral or written, formal or informal, funded or unfunded, insured or uninsured, providing employee benefits, including medical, hospital care, dental, sickness, accident, disability, life insurance, pension, retirement or savings benefits, under which the Company or any Subsidiary has any liability with respect to any employee or former employee in Canada, but excluding any Canadian Pension Plans and excluding the Canadian Pension Plan maintained by the government of Canada and the Quebec Pension Plan maintained by the government of the Province of Quebec.
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βCanadian Borrowerβ means (i)Β Forest Laboratories Canada Inc., a company incorporated under the laws of New Brunswick and (ii)Β any other Eligible Foreign Subsidiary organized under the laws of Canada or any province or territory thereof.
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βCanadian Dollarsβ or βCdn.$β means the lawful currency of Canada.
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βCanadian Payment Officeβ of the Administrative Agent means the office, branch, affiliate or correspondent bank of the Administrative Agent for Canadian Revolving Loans as specified from time to time by the Administrative Agent to the Company and each Lender.
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βCanadian Pension Planβ means any registered plan, program or arrangement that is subject to a funding requirement under any applicable Canadian federal or provincial pension legislation, which is maintained or contributed to by, or to which there is or may be an obligation to contribute by, the Company or a Subsidiary operating in Canada in respect of any Personβs employment in Canada with the Company or such Subsidiary, other than plans established by statute, but does not include the Canadian Pension Plan maintained by the government of Canada or the QuΓ©bec Pension Plan maintained by the Province of QuΓ©bec.
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βCanadian Pension Plan Termination Eventβ means an event which would entitle a Person (without the consent of the Company or a Subsidiary) to wind up or terminate a Canadian Pension Plan in full or in part, or the institution of any steps by any Person to wind up or order the termination or wind-up of, in full or in part, any Canadian Pension Plan, or the receipt by a the Company or a Subsidiary of correspondence from a Governmental Authority relating to a potential or actual, partial or full, termination or wind-up of any Canadian Pension Plan, or an event respecting any Canadian Pension Plan which would result in the revocation of the registration of such Canadian Pension Plan or which could otherwise reasonably be expected to adversely affect the tax status of any such Canadian Pension Plan.
Β
βCanadian Prime Rateβ means the greater of (a)Β the per annum floating rate of interest established from time to time by JPMorgan Chase Bank, N.A., Toronto Branch, as the prime rate it will use to determine rates of interest on Canadian Dollar loans to its customers in Canada and (b)Β the sum of (x)Β the CDOR Rate for an Interest Period of one month plus (y)Β 1.0%.
Β
βCanadian Revolving Borrowingβ means a Borrowing of Canadian Revolving Loans.
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βCanadian Revolving Loanβ means a Revolving Loan denominated in Canadian Dollars and made to a Canadian Borrower.
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βCapital Lease Obligationsβ of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Β
βChange in Controlβ means (a)Β the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 33% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company; (b)Β occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i)Β nominated by the board of directors of the Company nor (ii)Β appointed by directors so nominated; (c)Β the acquisition of direct or indirect Control of the Company by any Person or group; (d)Β the occurrence of a change in control, or other similar provision, as defined in any agreement or instrument evidencing any Material Indebtedness (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been waived in writing); or (e)Β the Company ceases to own, directly or indirectly, and Control 100% (other than directorsβ qualifying shares) of the ordinary voting and economic power of any Foreign Subsidiary Borrower.
Β
βChange in Lawβ means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following:Β Β (a)Β the adoption or taking effect of any law, rule, regulation or treaty, (b)Β any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c)Β the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary, (i)Β the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii)Β all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a βChange in Lawβ regardless of the date enacted, adopted, issued or implemented.
Β
βClassβ, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.
Β
βCodeβ means the Internal Revenue Code of 1986, as amended from time to time.
Β
βCo-Documentation Agentβ means each of Bank of America, N.A., Credit Suisse AG, Cayman Islands Branch, Morgan Stanley Senior Funding, Inc., U.S. Bank National Association and The Governor and Company of the Bank of Ireland in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.
Β
βCommitmentβ means, with respect to each Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lenderβs Revolving Credit Exposure hereunder, as such commitment may be (a)Β reduced or terminated from time to time pursuant to SectionΒ 2.09, (b)Β increased from time to time pursuant to SectionΒ 2.20 and (c)Β reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to SectionΒ 9.04.Β Β The initial amount of each Lenderβs Commitment is set forth on ScheduleΒ 2.01, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its Commitment, as applicable.
Β
βCompanyβ means Forest Laboratories, Inc., a Delaware corporation.
Β
βComputation Dateβ is defined in SectionΒ 2.04.
Β
βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise or similar Taxes or branch profits Taxes.
Β
βConsolidated EBITDAβ means Consolidated Net Income plus, to the extent deducted from revenues in determining Consolidated Net Income, (i)Β Consolidated Interest Expense, (ii)Β expense for taxes paid or accrued, (iii)Β depreciation, (iv)Β amortization, (v)Β extraordinary or non-recurring non-cash expenses or losses incurred other than in the ordinary course of business, (vi)Β non-cash impairment charges, (vii)Β non-cash charges related to the write-down of in-process research and development associated with acquisitions or any other non-cash impairment charges or non-cash asset write offs or amortization related to intangible assets and long-lived assets pursuant to GAAP (including pursuant to FASB ASC Topics 350, 360 or 805), (viii)Β non-cash expenses related to stock-based compensation minus, to the extent included in Consolidated Net Income, (1)Β interest income, (2)Β any cash payments made during such period in respect of items described in clauseΒ (viii) above subsequent to the fiscal quarter in which the relevant non-cash expense or losses were incurred and (3)Β extraordinary gains realized other than in the ordinary course of business, all calculated for the Company and its Subsidiaries in accordance with GAAP on a consolidated basis.Β Β For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each such period, a βReference Periodβ), (i)Β if at any time during such Reference Period the Company or any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, and (ii)Β if during such Reference Period the Company or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving proΒ forma effect thereto as if such Material Acquisition occurred on the first day of such Reference Period.Β Β As used in this definition and in the definition of βConsolidated Interest Expenseβ, βMaterial Acquisitionβ means any acquisition of property or series of related acquisitions of property that (a)Β constitutes (i)Β assets comprising all or substantially all or any significant portion of a business or operating unit of a business, or (ii)Β all or substantially all of the common stock or other Equity Interests of a Person, and (b)Β involves the payment of consideration by the Borrower and its Subsidiaries in excess of $200,000,000; and βMaterial Dispositionβ means any sale, transfer or disposition of property or series of related sales, transfers, or dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $200,000,000.
Β
βConsolidated Interest Expenseβ means, with reference to any period, the interest expense (including without limitation interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) of the Company and its Subsidiaries calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of the Company and its Subsidiaries allocable to such period in accordance with GAAP (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are allocable to such period in accordance with GAAP).Β Β In the event that the Company or any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant period, Consolidated Interest Expense shall be determined for such period on a proΒ forma basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.
Β
βConsolidated Net Incomeβ means, with reference to any period, the net income (or loss) of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis (without duplication) for such period.
Β
βConsolidated Total Indebtednessβ means at any time the sum, without duplication, of (a)Β the aggregate Indebtedness of the Company and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP, (b)Β the aggregate amount of Indebtedness of the Company and its Subsidiaries relating to the maximum drawing amount of all letters of credit outstanding and bankers acceptances and (c)Β Indebtedness of the type referred to in clausesΒ (a) or (b)Β hereof of another Person guaranteed by the Company or any of its Subsidiaries.
Β
βControlβ means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.Β Β βControllingβ and βControlledβ have meanings correlative thereto.
Β
βControlled Affiliateβ has the meaning assigned to such term in SectionΒ 3.18.
Β
βCorporation Tax Act 2009β means the Corporation Tax Xxx 0000 of the United Kingdom.
Β
βCountry Risk EventβΒ Β means:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β any law, action or failure to act by any Governmental Authority in any Borrowerβs or Letter of Credit beneficiaryβs country which has the effect of:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β changing the obligations under the relevant Letter of Credit, the Credit Agreement or any of the other Loan Documents as originally agreed or otherwise creating any additional liability, cost or expense to the Issuing Bank, the Lenders or the Administrative Agent,
Β
(b)Β Β Β Β Β Β Β Β Β Β Β changing the ownership or control by such Borrower or Letter of Credit beneficiary of its business, or
Β
(c)Β Β Β Β Β Β Β Β Β Β Β preventing or restricting the conversion into or transfer of the applicable Agreed Currency;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β force majeure; or
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β any similar event
Β
which, in relation to (i), (ii)Β and (iii), directly or indirectly, prevents or restricts the payment or transfer of any amounts owing under the relevant Letter of Credit in the applicable Agreed Currency into an account designated by the Administrative Agent or the Issuing Bank and freely available to the Administrative Agent or the Issuing Bank.
Β
βCredit Eventβ means a Borrowing, the issuance of a Letter of Credit, an LC Disbursement or any of the foregoing.
Β
βCredit Partyβ means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender.
Β
βDeemed Dividend Problemβ means, with respect to any Foreign Subsidiary, such Foreign Subsidiaryβs accumulated and undistributed earnings and profits being deemed to be repatriated to the Company or the applicable parent Domestic Subsidiary under SectionΒ 956 of the Code.
Β
βDefaultβ means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Β
βDefaulting Lenderβ means any Lender that (a)Β has failed, within two (2)Β Business Days of the date required to be funded or paid, to (i)Β fund any portion of its Loans, (ii)Β fund any portion of its participations in Letters of Credit or Swingline Loans or (iii)Β pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clauseΒ (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lenderβs good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b)Β has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lenderβs good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c)Β has failed, within threeΒ (3)Β Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clauseΒ (c) upon such Credit Partyβs receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d)Β has become the subject of a Bankruptcy Event.
Β
βDefined Benefit Planβ means any Canadian Pension Plan which contains a βdefined benefitβ provision, as defined in section 147.1(1) of the Income Tax Act (Canada).
Β
βDollar Amountβ of any currency at any date shall mean (i)Β the amount of such currency if such currency is Dollars or (ii)Β the equivalent amount thereof in Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in SectionΒ 2.04.
Β
βDollarsβ or β$β refers to lawful money of the United States of America.
Β
βDomestic Subsidiaryβ means a Subsidiary organized under the laws of a jurisdiction located in the United States of America.
Β
βDutch Borrowerβ means (i)Β Forest Finance B.V., a besloten vennootschap met beperkte aansprakelijkheid, incorporated under the laws of The Netherlands having its corporate seat (statutaire zetel) in Amsterdam, The Netherlands and (ii)Β any other Eligible Foreign Subsidiary organized under the laws of the Netherlands.
Β
βDutch Financial Supervision Actβ means the Dutch Financial Supervision Act (Wet op het financieel toezicht), as amended from time to time.
Β
βEffective Dateβ means the date on which the conditions specified in SectionΒ 4.01 are satisfied (or waived in accordance with SectionΒ 9.02).
Β
βEligible Foreign Subsidiaryβ means any Foreign Subsidiary that is approved from time to time by the Administrative Agent and each of the Lenders (such approval not to be unreasonably withheld or delayed).
Β
βEmbargoed Personβ has the meaning assigned to such term in SectionΒ 3.19.
Β
βEnvironmental Lawsβ means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.
Β
βEnvironmental Liabilityβ means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Subsidiary directly or indirectly resulting from or based upon (a)Β violation of any Environmental Law, (b)Β the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c)Β exposure to any Hazardous Materials, (d)Β the release or threatened release of any Hazardous Materials into the environment or (e)Β any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Β
βEquity Interestsβ means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing.
Β
βEquivalent Amountβ of any currency with respect to any amount of Dollars at any date shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00Β a.m., London time, on the date on or as of which such amount is to be determined.
Β
βERISAβ means the Employee Retirement Income Security Act of 1974, as amended from time to time.
Β
βERISA Affiliateβ means any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under SectionΒ 414(b) or (c)Β of the Code or, solely for purposes of SectionΒ 302 of ERISA and SectionΒ 412 of the Code, is treated as a single employer under SectionΒ 414 of the Code.
Β
βERISA Eventβ means (a)Β any βreportable eventβ, as defined in SectionΒ 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b)Β the failure to satisfy the βminimum funding standardβ (as defined in SectionΒ 412 of the Code or SectionΒ 302 of ERISA), whether or not waived; (c)Β the filing pursuant to SectionΒ 412(c) of the Code or SectionΒ 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d)Β the incurrence by the Company or any of its ERISA Affiliates of any liability under TitleΒ IV of ERISA with respect to the termination of any Plan; (e)Β the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)Β the incurrence by the Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g)Β the receipt by the Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice, concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of TitleΒ IV of ERISA.
Β
βEstablishmentβ means, in respect of any Person, any place of operations where such Person carries out a non-transitory economic activity with human means and goods, assets or services.
Β
βeuroβ and/or βEURβ means the single currency of the Participating Member States.
Β
βEurocurrencyβ, when used in reference to a currency means an Agreed Currency and when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
Β
βEurocurrency Payment Officeβ of the Administrative Agent shall mean, for each Foreign Currency (other than Canadian Dollars in respect of Canadian Revolving Borrowings), the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Lender.
Β
βEvent of Defaultβ has the meaning assigned to such term in ArticleΒ VII.
Β
βExchange Rateβ means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into Dollars, as set forth at approximately 11:00Β a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency.Β Β In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00Β a.m., Local Time, on such date for the purchase of Dollars with such Foreign Currency, for delivery two Business Days later; provided, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Company, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
Β
βExisting Credit Agreementβ means that certain Credit Agreement, dated as of DecemberΒ 7, 2007, by and among the Company, certain Subsidiaries of the Company and JPMorgan Chase Bank, N.A., as administrative agent, as amended, modified, supplemented or restated prior to the date hereof.
Β
βExisting Letters of Creditβ is defined in SectionΒ 2.06(a).
Β
βExcluded Taxesβ means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a)Β Taxes imposed on or measured by net income (however denominated), franchise or similar Taxes, and any branch profits Taxes, in each case, (i)Β imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii)Β that are Other Connection Taxes, (b)Β in the case of a Lender, U.S.Β Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i)Β such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by any Borrower under SectionΒ 2.19(b)) or (ii)Β such Lender changes its lending office, except in each case to the extent that, pursuant to SectionΒ 2.17, amounts with respect to such Taxes were payable either to such Lenderβs assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c)Β Taxes attributable to such Recipientβs failure to comply with SectionΒ 2.17(f) and (d)Β any U.S.Β Federal withholding Taxes imposed under FATCA.
Β
βExecutive Orderβ has the meaning assigned to such term in SectionΒ 3.19.
Β
βFATCAβ means SectionsΒ 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to SectionΒ 1471(b)(1) of the Code.
Β
βFederal Funds Effective Rateβ means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Β
βFinancial Officerβ means the chief financial officer, principal accounting officer, treasurer or controller of the Company.
Β
βFinancialsβ means the annual or quarterly financial statements, and accompanying certificates and other documents, of the Company and its Subsidiaries required to be delivered pursuant to SectionΒ 5.01(a) or 5.01(b).
Β
βForeign Assets Control Regulationsβ has the meaning assigned to such term in SectionΒ 3.19.
Β
βForeign Currenciesβ means Agreed Currencies other than Dollars.
Β
βForeign Currency LC Exposureβ means, at any time, the sum of (a)Β the Dollar Amount of the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b)Β the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.
Β
βForeign Currency Letter of Creditβ means a Letter of Credit denominated in a Foreign Currency.
Β
βForeign Lenderβ means (a)Β if the applicable Borrower is a U.S.Β Person, a Lender, with respect to such Borrower, that is not a U.S.Β Person, and (b)Β if the applicable Borrower is not a U.S.Β Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
Β
βForeign Subsidiaryβ means any Subsidiary which is not a Domestic Subsidiary.
Β
βForeign Subsidiary Borrowerβ means (i)Β each of Forest Laboratories Holdings Limited, Forest Laboratories Ireland Limited, Forest Finance B.V., Forest Laboratories UK Limited and Forest Laboratories Canada Inc. and (ii)Β any Eligible Foreign Subsidiary that becomes a Foreign Subsidiary Borrower pursuant to SectionΒ 2.23 and, in each case, that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section.
Β
βGAAPβ means generally accepted accounting principles in the United States of America.
Β
βGovernmental Authorityβ means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Β
βGuaranteeβ of or by any Person (the βguarantorβ) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the βprimary obligorβ) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a)Β to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b)Β to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c)Β to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d)Β as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
Β
βHazardous Materialsβ means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
Β
βIncreasing Lenderβ has the meaning assigned to such term in SectionΒ 2.20.
Β
βIncremental Term Loanβ has the meaning assigned to such term in SectionΒ 2.20.
Β
βIncremental Term Loan Amendmentβ has the meaning assigned to such term in SectionΒ 2.20.
Β
βIndebtednessβ of any Person means, without duplication, (a)Β all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b)Β all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c)Β all obligations of such Person upon which interest charges are customarily paid, (d)Β all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e)Β all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f)Β all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g)Β all Guarantees by such Person of Indebtedness of others, (h)Β all Capital Lease Obligations of such Person, (i)Β all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j)Β all obligations, contingent or otherwise, of such Person in respect of bankersβ acceptances, and (k)Β obligations of such Person under Sale and Leaseback Transactions.Β Β The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Personβs ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
Β
βIndemnified Taxesβ means (a)Β Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document and (b)Β to the extent not otherwise described in clauseΒ (a), Other Taxes.
Β
βInformation Memorandumβ means the Confidential Information Memorandum dated September 2012 relating to the Company and the Transactions.
Β
βInterest Coverage Ratioβ has the meaning assigned to such term in SectionΒ 6.10(b).
Β
βInterest Election Requestβ means a request by the applicable Borrower to convert or continue a Revolving Borrowing in accordance with SectionΒ 2.08 in the form attached hereto as Exhibit H-2.
Β
βInterest Payment Dateβ means (a)Β with respect to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December and the Maturity Date, (b)Β with respect to any Eurocurrency Loan or BA Equivalent Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or BA Equivalent Borrowing with an Interest Period of more than three monthsβ duration, each day prior to the last day of such Interest Period that occurs at intervals of three monthsβ duration after the first day of such Interest Period and the Maturity Date and (c)Β with respect to any Swingline Loan, the day that such Loan is required to be repaid and the Maturity Date.
Β
βInterest Periodβ means with respect to any Eurocurrency Borrowing or any BA Equivalent Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the applicable Borrower (or the Company on behalf of the applicable Borrower) may elect; provided, that (i)Β if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing or a BA Equivalent Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii)Β any Interest Period pertaining to a Eurocurrency Borrowing or a BA Equivalent Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.Β Β For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
Β
βIrish Borrowerβ means (i)Β Forest Laboratories Holdings Limited, a limited liability company organized under the laws of Ireland, (ii)Forest Laboratories Ireland Limited, a limited liability company organized under the laws of Ireland and (iii)Β any other Eligible Foreign Subsidiary organized under the laws of Ireland.
Β
βIrish Qualifying Lenderβ means a Lender in respect of an advance under a Loan Document and which is:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β the holder of a licence for the time being in force granted under section 9 of the Irish Xxxxxxx Xxxx Xxx 0000 and whose facility office is located in Ireland, or an authorised credit institution under the terms of EU Council Directive 2000/12/EC of 20 March 2000, as amended which has duly established a branch in Ireland or has made all necessary notifications to its home state competent authorities required thereunder in relation to its intention to carry on banking business in Ireland provided in each case that it is carrying on a bona fide banking business in Ireland with which the interest payment is connected; or
Β
(b)Β Β Β Β Β Β Β Β Β Β (i)Β Β Β Β Β Β Β Β Β Β Β a body corporate that is resident for the purposes of tax in a member state of the European Communities (other than Ireland) or in a territory with which Ireland has concluded a Treaty that is in effect by virtue of section 826(1) of the Taxes Consolidation Xxx 0000, of Ireland, as amended (βTaxes Actβ) or in a territory with which Ireland has signed a Treaty which will come into effect once all the ratification procedures set out in section 826(1) of the Taxes Act have been completed (residence for these purposes to be determined in accordance with the laws of the territory of which the Lender claims to be resident) where that member state or territory imposes a tax that generally applies to interest receivable in that member state or territory by companies from sources outside that member state or territory; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β a company where interest payable in respect of an advance:
Β
(A)Β Β Β Β Β Β Β Β Β Β Β is exempted from the charge to income tax under a double taxation agreement that is in effect by virtue of section 826(1) of the Taxes Act; or
Β
(B)Β Β Β Β Β Β Β Β Β Β Β would be exempted from the charge to income tax under a double taxation agreement if such double taxation agreement was in effect by virtue of Section 826(1) of the Taxes Act;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β a United States of America (βU.S.β) corporation, provided the U.S. corporation is incorporated in the U.S. and subject to U.S. tax on its worldwide income; or
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β a U.S. limited liability company (βLLCβ), provided the ultimate recipients of the interest would, if they were themselves lenders, be Irish Qualifying Lenders within paragraph (b)(i) or (b)(ii) or (b)(iii) of this definition and the business conducted through the LLC is so structured for market reasons and not for tax avoidance purposes;
Β
provided in each case at (i), (ii), (iii) or (iv) the Lender is not carrying on a trade or business in Ireland through an agency or branch with which the interest payment is connected; or
Β
(c)Β Β Β Β Β Β Β Β Β Β Β an Irish Treaty Lender; or
Β
(d)Β Β Β Β Β Β Β Β Β Β Β a body corporate which is resident in Ireland for the purposes of Irish tax or which carries on a trade in Ireland through a branch or agency:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β which makes the advance in the ordinary course of a trade which includes the lending of money; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β in whose hands any interest payable in respect of the advance is taken into account in computing the trading income of the company; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β which has complied with all of the provisions of Section 246(5)(a) of the Taxes Act, as amended, including making the appropriate notifications thereunder; or
Β
(e)Β Β Β Β Β Β Β Β Β Β Β a qualifying company within the meaning of Section 110 of the Taxes Act; or
Β
(f)Β Β Β Β Β Β Β Β Β Β Β an investment undertaking within the meaning of Section 739B of the Taxes Act.
Β
βIrish TaxβΒ means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) imposed by the government of Ireland or any political subdivision thereof.
Β
βIrish Treaty Lenderβ means, subject to the completion of procedural formalities, a Lender which is treated as a resident of an Irish Treaty State for the purposes of a double taxation agreement and does not carry on a business in Ireland through a permanent establishment with which that Lenderβs participation in this Agreement is effectively connected.
Β
βIrish Treaty Stateβ means a jurisdiction which has a double taxation agreement with Ireland which is in effect and makes provision for full exemption from tax imposed by Ireland on interest.
Β
βIRSβ means the United States Internal Revenue Service.
Β
βIssuing Bankβ means JPMorgan Chase Bank, N.A., in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in SectionΒ 2.06(i).Β Β The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term βIssuing Bankβ shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
Β
βITAβ means the Income Tax Act of 2007 of the United Kingdom.
Β
βLC Disbursementβ means a payment made by the Issuing Bank pursuant to a Letter of Credit.
Β
βLC Exposureβ means, at any time, the sum of (a)Β the aggregate undrawn Dollar Amount of all outstanding Letters of Credit at such time plus (b)Β the aggregate Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Company at such time.Β Β The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
Β
βLendersβ means the Persons listed on ScheduleΒ 2.01 and any other Person that shall have become a Lender hereunder pursuant to SectionΒ 2.20 or pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.Β Β Unless the context otherwise requires, the term βLendersβ includes the Swingline Lender and the Issuing Bank.
Β
βLetter of Creditβ means any letter of credit issued pursuant to this Agreement.
Β
βLeverage Ratioβ has the meaning assigned to such term in SectionΒ 6.10(a).
Β
βLIBO Rateβ means, with respect to any Eurocurrency Borrowing for any Interest Period, the rate appearing on, in the case of Dollars, Reuters Screen LIBOR01 Page and, in the case of any Foreign Currency, the appropriate page of such service which displays British Bankers Association Interest Settlement Rates for deposits in such Foreign Currency (or, in each case, on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in the relevant Agreed Currency in the London interbank market) at approximately 11:00Β a.m., London time, two (2)Β Business Days prior to (or, in the case of Loans denominated in Pounds Sterling, on the day of) the commencement of such Interest Period, as the rate for deposits in the relevant Agreed Currency with a maturity comparable to such Interest Period.Β Β In the event that such rate is not available at such time for any reason, then the βLIBO Rateβ with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which deposits in the relevant Agreed Currency in an Equivalent Amount of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00Β a.m., London time, two (2)Β Business Days prior to (or, in the case of Loans denominated in Pounds Sterling, on the day of) the commencement of such Interest Period.
Β
βLienβ means, with respect to any asset, (a)Β any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b)Β the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c)Β in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
Β
βLoan Documentsβ means this Agreement, each Borrowing Subsidiary Agreement, each Borrowing Subsidiary Termination, any promissory notes executed and delivered pursuant to SectionΒ 2.10(e) and any and all other instruments and documents executed and delivered in connection with any of the foregoing.
Β
βLoansβ means the loans made by the Lenders to the Borrowers pursuant to this Agreement.
Β
βLocal Timeβ means (i)Β New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in Dollars, (ii)Β Toronto, Canada time in the case of a Loan, Borrowing or LC Disbursement denominated in Canadian Dollars made to, or for the account of, a Canadian Borrower and (iii)Β local time in the case of a Loan, Borrowing or LC Disbursement denominated in a Foreign CurrencyΒ Β (other than those denominated in Canadian Dollars and made to, or for the account of, a Canadian Borrower) (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).
Β
βMandatory Costβ is described in ScheduleΒ 2.02.
Β
βMaterial Adverse Effectβ means a material adverse effect on (a)Β the business, assets, operations or financial condition of the Company and the Subsidiaries taken as a whole or (b)Β the validity or enforceability of this Agreement or any other Loan Document or the rights of or remedies available to the Lenders under this Agreement or any other Loan Document.
Β
βMaterial Indebtednessβ means any Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Company and its Subsidiaries in an aggregate principal amount exceeding $100,000,000.Β Β For purposes of determining Material Indebtedness, the βprincipal amountβ of the obligations of the Company or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
Β
βMaturity Dateβ means December 4, 2017.
Β
βMember Stateβ means the territory of each Member State of the European Community as defined in articles 5 and 6 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.
Β
βMoodyβsβ means Xxxxxβx Investors Service, Inc.
Β
βMultiemployer Planβ means a multiemployer plan as defined in SectionΒ 4001(a)(3) of ERISA.
Β
βNew Money Credit Eventβ means with respect to the Issuing Bank, any increase (directly or indirectly) in the Issuing Bankβs exposure (whether by way of additional credit or banking facilities or otherwise, including as part of a restructuring) to any Borrower or any Governmental Authority in any Borrowerβs or any applicable Letter of Credit beneficiaryβs country occurring by reason of (i)Β any law, action or requirement of any Governmental Authority in such Borrowerβs or such Letter of Credit beneficiaryβs country, or (ii)Β any request in respect of external indebtedness of borrowers in such Borrowerβs or such Letter of Credit beneficiaryβs country applicable to banks generally which conduct business with such borrowers, or (iii)Β any agreement in relation to clauseΒ (i) or (ii), in each case to the extent calculated by reference to the aggregate Revolving Credit Exposures outstanding prior to such increase.
Β
βNon-U.S.Β Pension Planβ means any plan, scheme, fund (including any superannuation fund) or other similar program established, sponsored or maintained outside the United States by the Company or any one or more of its Subsidiaries primarily for the benefit of employees of the Company or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
Β
βObligationsβ means all indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the Company and its Subsidiaries to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or to the Lenders or any of their Affiliates under any Swap Agreement or any Banking Services Agreement or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof.
Β
βOFACβ means Office of Foreign Assets Control of the United States Department of the Treasury.
Β
βOther Connection Taxesβ means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
Β
βOther Taxesβ means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to SectionΒ 2.19).
Β
βOvernight Foreign Currency Rateβ means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3)Β Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.
Β
βParentβ means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
Β
βParticipantβ has the meaning assigned to such term in SectionΒ 9.04.
Β
βParticipant Registerβ has the meaning assigned to such term in SectionΒ 9.04.
Β
βParticipating Member Stateβ means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
Β
βPBGCβ means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Β
βPensions Xxx 0000β means the Pensions Xxx 0000 of the United Kingdom.
Β
βPensions Xxx 0000β means the Pensions Xxx 0000 of the United Kingdom.
Β
βPermitted Acquisitionβ means any acquisition (whether by purchase, merger, consolidation, amalgamation or otherwise) or series of related acquisitions by the Company or any Subsidiary of (i)Β all or substantially all the assets of, (ii)Β all the Equity Interests in, a Person or division or line of business of a Person or (iii)Β if clausesΒ (i) and (ii)Β above are inapplicable, the acquisition of intellectual property rights (including licenses and the acquisition of assets ancillary to such acquisition) other than in the ordinary course of business, if, at the time of and immediately after giving effect thereto, (a)Β no Default has occurred and is continuing or would arise after giving effect thereto, (b)Β such Person or division or line of business is engaged in the same or a similar line of business as the Company and the Subsidiaries or business reasonably related thereto, (c)Β the Company and the Subsidiaries are in compliance, on a proΒ forma basis reasonably acceptable to the Administrative Agent after giving effect to such acquisition (but without giving effect to any synergies or cost savings), with the covenants contained in SectionΒ 6.10 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such acquisition (and any related incurrence or repayment of Indebtedness, with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of each relevant period for testing such compliance and, if the aggregate consideration paid in respect of such acquisition exceeds $100,000,000, the Company shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Company to such effect, together with all relevant financial information, statements and projections requested by the Administrative Agent and (d)Β in the case of an acquisition, merger, amalgamation or consolidation involving the Company or a Subsidiary, the Company or a Subsidiary is the surviving entity of such merger, amalgamation and/or consolidation (provided that in the case of a merger, amalgamation or consolidation involving the Company, the Company must be the surviving entity).
Β
βPermitted Encumbrancesβ means:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Liens imposed by law for Taxes that (i) are not yet due or are being contested in compliance with SectionΒ 5.04 or (ii) secure amounts that are not material to the Company and its Subsidiaries taken as a whole;
Β
(b)Β Β Β Β Β Β Β Β Β landlordsβ, carriersβ, warehousemenβs, mechanicsβ, materialmenβs, supplierβs, repairmenβs and other like Liens imposed by law or pursuant to customary reservations or retentions of title, in any case arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30)Β days or are being contested in compliance with SectionΒ 5.04;
Β
(c)Β Β Β Β Β Β Β Β Β pledges or liens and deposits made in the ordinary course of business in compliance with workersβ compensation, unemployment insurance and other social security laws or regulations or similar laws or regulations, or insurance related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
Β
(d)Β Β Β Β Β Β Β Β Β deposits or liens to secure the performance of bids, tenders, trade contracts, leases, to secure utilities, licenses, public or statutory obligations, surety indemnity, judgments and appeal bonds, performance bonds or liens, bonds, guarantees of government contracts (or other similar bonds, instruments or obligations), or as security for contested taxes or import or customs duties or for the payment of rent, and other obligations of a like nature, in each case in the ordinary course of business;
Β
(e)Β Β Β Β Β Β Β Β Β judgment Liens in respect of judgments that do not constitute an Event of Default under clauseΒ (k) of ArticleΒ VII; and
Β
(f)Β Β Β Β Β Β Β Β Β easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
Β
(g)Β Β Β Β Β Β Β Β Β contractual Liens which arise in the ordinary course of business under operating agreements, joint venture agreements, partnership agreements, leases, areas of mutual interest agreements, royalty agreements, marketing agreements, processing agreements, development agreements, and other agreements which are usual and customary in the ordinary conduct of business of the Company or any Subsidiary;
Β
(h)Β Β Β Β Β Β Β Β Β leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business;
Β
(i)Β Β Β Β Β Β Β Β Β Liens arising by virtue of any statutory or common law provisions relating to bankerβs Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution;
Β
(j)Β Β Β Β Β Β Β Β Β Liens arising from Uniform Commercial Code financing statement filings (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Company and its Subsidiaries in the ordinary course of business;
Β
(k)Β Β Β Β Β Β Β Β Β any interest or title of a lessor under any operating lease;
Β
(l)Β Β Β Β Β Β Β Β Β (i)Β mortgages, liens, security interests, restrictions, encumbrances or other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Company or any Subsidiary has easement rights or on any leased property and subordination or similar arrangements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
Β
(m)Β Β Β Β Β Β Β Β Β any encumbrances or restriction (including put and call arrangements) with respect to Equity Interests of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
Β
(n)Β Β Β Β Β Β Β Β Β Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets; and other obligations of a like nature, in each case in the ordinary course of business;
Β
(o)Β Β Β Β Β Β Β Β Β Liens securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities or Liens over cash accounts securing cash pooling arrangements; and
Β
(p)Β Β Β Β Β Β Β Β Β Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business.
Β
provided that the term βPermitted Encumbrancesβ shall not include any Lien securing Indebtedness.
Β
βPermitted Investmentsβ means investments made in accordance with the Companyβs investment policy, as set forth in Schedule 6.04 and as may be revised by the Company from time to time; provided that any such revisions that are material are consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
Β
βPersonβ means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Β
βPlanβ means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of TitleΒ IV of ERISA or SectionΒ 412 of the Code or SectionΒ 302 of ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated, would under SectionΒ 4069 of ERISA be deemed to be) an βemployerβ as defined in SectionΒ 3(5) of ERISA.
Β
βPounds Sterlingβ or βΒ£β means the lawful currency of the United Kingdom.
Β
βPrime Rateβ means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
Β
βProhibited Personβ means any Person (a)Β listed in the Annex to the Executive Order or identified pursuant to SectionΒ 1 of the Executive Order; (b)Β that is owned or controlled by, or acting for or on behalf of, any Person listed in the Annex to the Executive Order or identified pursuant to the provisions of SectionΒ 1 of the Executive Order; (c)Β with whom a Lender is prohibited from dealing or otherwise engaging in any transaction by any terrorism or anti-laundering law, including the Executive Order; (d)Β who commits, threatens, conspires to commit, or support βterrorismβ as defined in the Executive Order; (e)Β who is named as a βSpecially designated national or blocked personβ on the most current list published by the OFAC at its official website, at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/x00xxx.xxx or any replacement website or other replacement official publication of such list; or (f)Β who is owned or controlled by a Person listed above in clauseΒ (c) or (e).
Β
βProtected Partyβ means any Credit Party that is or will be subject to any liability or required to make any payment for or on account of UK Tax or Irish Tax, in relation to a sum received or receivable (or any sum deemed for the purposes of UK Tax or Irish Tax to be received or receivable) under any Loan Document.
Β
βQualifying Lenderβ means:
Β
(i) a Lender (other than a Lender within clauseΒ (ii) below) that is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β a Lender:
Β
Β
|
(1)
|
in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and which is a bank (as defined for the purpose of section 879 of the ITA) and would be within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance apart from section 18A of the Corporation Tax Xxx 0000; or
|
Β
Β
|
(2)
|
in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
|
Β
(b)Β Β Β Β Β Β Β Β Β Β Β a Lender which is:
Β
Β
|
(1)
|
a company resident in the United Kingdom for United Kingdom tax purposes; or
|
Β
Β
|
(2)
|
a partnership each member of which is:
|
Β
Β
|
(x)
|
a company so resident in the United Kingdom; or
|
Β
Β
|
(y)
|
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 19 of the Corporation Tax Act 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of PartΒ 17 of the Corporation Tax Xxx 0000; or
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Β
Β
|
(3)
|
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 its chargeable profits (within the meaning given by section 19 of the Corporation Tax Act 2009); or
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Β
(c)Β Β Β Β Β Β Β Β Β Β Β a Treaty Lender; or
Β
(ii) a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Loan Document.
Β
βRecipientβ means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank.
Β
βRegisterβ has the meaning assigned to such term in SectionΒ 9.04.
Β
βRegulationβ means the Council of the European Union Regulations No.Β 1346/2000 on Insolvency Proceedings.
Β
βRelated Partiesβ means, with respect to any specified Person, such Personβs Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Personβs Affiliates.
Β
βRequired Lendersβ means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments at such time.
Β
βRestricted Paymentβ means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Company or any option, warrant or other right to acquire any such Equity Interests in the Company; provided that payments of principal and interest in respect of Indebtedness convertible into Equity Interest of the Company or any Subsidiary shall not constitute Restricted Payments.
Β
βRevolving Credit Exposureβ means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lenderβs Revolving Loans and its LC Exposure and Swingline Exposure at such time.
Β
βRevolving Loanβ means a Loan made pursuant to SectionΒ 2.01.
Β
βS&Pβ means Standard & Poorβs Ratings Services, a Standard & Poorβs Financial Services LLC business.
Β
βSale and Leaseback Transactionβ means any sale or other transfer of any property or asset by any Person with the intent to lease such property or asset as lessee.
Β
βSECβ means the United States Securities and Exchange Commission.
Β
βStatutory Reserve Rateβ means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Board, the Financial Services Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal.Β Β Such reserve, liquid asset, fees or similar requirements shall, in the case of Dollar denominated Loans, include those imposed pursuant to RegulationΒ D of the Board.Β Β Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including RegulationΒ D of the Board.Β Β The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
Β
βSubordinated Indebtednessβ means any Indebtedness of the Company or any Subsidiary the payment of which is subordinated to payment of the obligations under the Loan Documents.
Β
βSubordinated Indebtedness Documentsβ means any document, agreement or instrument evidencing any Subordinated Indebtedness or entered into in connection with any Subordinated Indebtedness.
Β
βsubsidiaryβ means, with respect to any Person (the βparentβ) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parentβs consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a)Β of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b)Β that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Β
βSubsidiaryβ means any subsidiary of the Company.
Β
βSwap Agreementβ means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a Swap Agreement.
Β
βSwingline Exposureβ means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.Β Β The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the totalΒ Β Swingline Exposure at such time.
Β
βSwingline Lenderβ means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder.
Β
βSwingline Loanβ means a Loan made pursuant to SectionΒ 2.05.
Β
βSyndication Agentβ means Fifth Third Bank in its capacity as syndication agent for the credit facility evidenced by this Agreement.
Β
βTARGET2β means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.
Β
βTax Creditβ means a credit against, relief of remission for or repayment of any UK Tax or any Irish Tax.
Β
βTax Deductionβ means a deduction or withholding for or on account of UK Tax or Irish Tax from a payment under any Loan Document.
Β
βTax Paymentβ means either an increased payment made by a Borrower to a Lender under SectionΒ 2.17A(d) or a payment under SectionΒ 2.17A(m).
Β
βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto, but excluding UK Tax or Irish Tax.
Β
βTrading with the Enemy Actβ has the meaning assigned to such term in SectionΒ 3.19.
Β
βTransactionsβ means the execution, delivery and performance by the Borrowers of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions hereunder, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
Β
βTreatyβ is defined in the definition of Treaty State.
Β
βTreaty Lenderβ means a Lender which:
Β
(i) is treated as a resident of a Treaty State for the purposes of a Treaty; and
Β
(ii) does not carry on a business in the United Kingdom through a permanent establishment with which that Lenderβs participation in the Loan is effectively connected.
Β
βTreaty Stateβ means a jurisdiction having a double taxation agreement (a βTreatyβ) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
Β
βTypeβ, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or the BA Rate.
Β
βUK Borrowerβ means (i)Β Forest Laboratories UK Limited, a company incorporated under the laws of England and Wales and (ii)Β any other Eligible Foreign Subsidiary organized under the laws of England and Wales.
Β
βUK Insolvency Eventβ means:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β a UK Relevant Entity is unable or admits inability to pay its debts as they fall due or is deemed to or declared to be unable to pay its debts under applicable law, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
Β
(b)Β Β Β Β Β Β Β Β Β Β Β the value of the assets of any UK Relevant Entity (on a consolidated basis with its subsidiaries), is less than its liabilities (taking into account contingent and prospective liabilities);
Β
(c)Β Β Β Β Β Β Β Β Β Β Β a moratorium is declared in respect of any indebtedness of any UK Relevant Entity; provided that, if a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by such moratorium;
Β
(d)Β Β Β Β Β Β Β Β Β Β Β any corporate action, legal proceedings or other procedure or step is taken in relation to:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β the suspension of payments, a moratorium of any indebtedness, winding up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of any UK Relevant Entity;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β a composition, compromise, assignment or arrangement with any creditor of any UK Relevant Entity;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any UK Relevant Entity, or any of its assets; or
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β enforcement of any Lien over any assets of any UK Relevant Entity,
Β
or any analogous procedure or step is taken in any jurisdiction, save that this paragraphΒ (d) shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14Β days of commencement; or
Β
(e)Β Β Β Β Β Β Β Β Β Β Β any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of a UK Relevant Entity, in each such case, to the extent that any such actions or process described in this clauseΒ (e) could reasonably be expected to result in a Material Adverse Effect.
Β
βUK Relevant Entityβ means any UK Borrower or any other Borrower capable of becoming subject of an order for winding-up or administration under the Insolvency Xxx 0000 of the United Kingdom.
Β
βUK Taxβ means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) imposed by the government of the United Kingdom or any political subdivision thereof.
Β
βU.S.Β Personβ means a βUnited States personβ within the meaning of SectionΒ 7701(a)(30) of the Code.
Β
βU.S.Β Tax Compliance Certificateβ has the meaning assigned to such term in SectionΒ 2.17(f)(ii)(B)(3).
Β
βVATβ means value added tax within the meaning of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax or any legislation in a Member State implementing such Council Directive and any other tax of a similar nature.
Β
βWithdrawal Liabilityβ 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 TitleΒ IV of ERISA.
Β
B.Β Classification of Loans and Borrowings
Β
.Β Β For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a βRevolving Loanβ) or by Type (e.g., a βEurocurrency Loanβ) or by Class and Type (e.g., a βEurocurrency Revolving Loanβ).Β Β Borrowings also may be classified and referred to by Class (e.g., a βRevolving Borrowingβ) or by Type (e.g., a βEurocurrency Borrowingβ) or by Class and Type (e.g., a βEurocurrency Revolving Borrowingβ).
Β
C.Β Terms Generally
Β
.Β Β The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.Β Β Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.Β Β The words βincludeβ, βincludesβ and βincludingβ shall be deemed to be followed by the phrase βwithout limitationβ.Β Β The word βwillβ shall be construed to have the same meaning and effect as the word βshallβ.Β Β The word βlawβ shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities.Β Β Unless the context requires otherwise (a)Β any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b)Β any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c)Β any reference herein to any Person shall be construed to include such Personβs successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d)Β the words βhereinβ, βhereofβ and βhereunderβ, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e)Β all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f)Β the words βassetβ and βpropertyβ shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
Β
D.Β Accounting Terms; GAAP
Β
.Β Β Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provisionΒ Β amended in accordance herewith.Β Β Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i)Β without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at βfair valueβ, as defined therein and (ii)Β without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
Β
II.Β Β Β Β Β Β
Β
Β
The Credits
Β
A.Β Commitments
Β
.Β Β Subject to the terms and conditions set forth herein, each Lender (severally and not jointly) agrees to make Revolving Loans to the Borrowers in Agreed Currencies from time to time during the Availability Period in an aggregate principal amount that will not result in (a)Β subject to SectionsΒ 2.04 and 2.11(b), the Dollar Amount of such Lenderβs Revolving Credit Exposure exceeding such Lenderβs Commitment or (b)Β subject to SectionsΒ 2.04 and 2.11(b), the sum of the Dollar Amount of the total Revolving Credit Exposures exceeding the Aggregate Commitment.Β Β Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.Β Β Canadian Revolving Loans may only be made to (and may only be requested by or in respect of) a Canadian Borrower, and a Canadian Borrower may not request a Eurocurrency Loan denominated in Canadian Dollars (nor may the Company or any other Person request such a Eurocurrency Loan on behalf of a Canadian Borrower in Canadian Dollars) but, for the avoidance of doubt, a Canadian Borrower may request Eurocurrency Loans denominated in any Agreed Currency other than Canadian Dollars.
Β
B.Β Loans and Borrowings
Β
.Β Β (a) Each Revolving Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their respective Commitments.Β Β The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lenderβs failure to make Loans as required.Β Β Any Swingline Loan shall be made in accordance with the procedures set forth in SectionΒ 2.05.
Β
1.Β Subject to SectionΒ 2.14, (i)Β each Revolving Borrowing (other than a Canadian Revolving Borrowing) shall be comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may request in accordance herewith; provided that each ABR Loan shall only be made in Dollars and (ii)Β each Canadian Revolving Borrowing shall be comprised entirely of BA Equivalent Loans.Β Β Each Swingline Loan shall be an ABR Loan.Β Β Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of SectionsΒ 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect (i) the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this Agreement and (ii) such Lenderβs agreements in Section 2.19(a).
Β
2.Β At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 (or, if such Borrowing is denominated in a Foreign Currency, 1,000,000 units of such currency) and not less than $5,000,000 (or, if such Borrowing is denominated in a Foreign Currency, 5,000,000 units of such currency).Β Β At the commencement of each Interest Period for any BA Equivalent Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of Cdn.$1,000,000 and not less than Cdn.$5,000,000.Β Β At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by SectionΒ 2.06(e).Β Β Each Swingline Loan shall be in an amount that is an integral multiple of $100,000 and not less than $500,000.Β Β Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of ten (10)Β Eurocurrency Revolving Borrowings and BA Equivalent outstanding.
Β
3.Β Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
Β
4.Β The initial Borrowing from any Lender to any Dutch Borrower shall be at least β¬100,000 (or its equivalent in another Agreed Currency) or any other amount that will from time to time be applicable under section 3(2) under a and/or b of the Dutch Decree on Definitions Wft (Besluit definitiebepalingen Wft), or, if it is less, that Lender shall confirm in writing to that Dutch Borrower that it is a professional market party within the meaning of the Dutch Financial Supervision Act.
Β
C.Β Requests for Revolving Borrowings
Β
.Β Β To request a Revolving Borrowing, the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent of such request (a)Β by irrevocable written notice (via a written Borrowing Request signed by the applicable Borrower, or the Company on behalf of the applicable Borrower, promptly followed by telephonic confirmation of such request), not later than 11:00Β a.m., Local Time, three (3)Β Business Days (in the case of a Eurocurrency Borrowing denominated in Dollars or a BA Equivalent Borrowing) or by irrevocable written notice (via a written Borrowing Request signed by such Borrower, or the Company on its behalf)Β Β not later than four (4)Β Business Days (in the case of a Eurocurrency Borrowing denominated in a Foreign Currency), in each case before the date of the proposed Borrowing or (b)Β by telephone in the case of an ABR Borrowing, not later than 11:00Β a.m., Local Time, on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by SectionΒ 2.06(e) may be given not later than 10:00Β a.m., New York City time, on the date of the proposed Borrowing.Β Β Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request signed by the applicable Borrower, or the Company on behalf of the applicable Borrower.Β Β Each such telephonic and written Borrowing Request shall specify the following information in compliance with SectionΒ 2.02:
Β
a)Β the name of the applicable Borrower;
Β
b)Β the aggregate amount of the requested Borrowing;
Β
c)Β the date of such Borrowing, which shall be a Business Day;
Β
d)Β whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing (or, in the case of a Canadian Revolving Borrowing, that such Borrowing is to be a BA Equivalent Borrowing);
Β
e)Β in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term βInterest Periodβ;
Β
f)Β in the case of a BA Equivalent Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term βInterest Periodβ; and
Β
g)Β the location and number of the applicable Borrowerβs account to which funds are to be disbursed, which shall comply with the requirements of SectionΒ 2.07.
Β
If no election as to the Type of Revolving Borrowing is specified, then, (i)Β in the case of a Borrowing denominated in Dollars, the requested Revolving Borrowing shall be an ABR Borrowing and (ii)Β in the case of a Canadian Revolving Borrowing, the requested Borrowing shall be a BA Equivalent Borrowing.Β Β If no Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing or BA Equivalent Revolving Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one monthβs duration.Β Β Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lenderβs Loan to be made as part of the requested Borrowing.
Β
D.Β Determination of Dollar Amounts
Β
.Β Β The Administrative Agent will determine the Dollar Amount of:
Β
1.Β each Eurocurrency Borrowing or Canadian Revolving Borrowing as of the date two (2)Β Business Days prior to the date of such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as a Eurocurrency Borrowing or a Canadian Revolving Borrowing, as applicable,
Β
2.Β the LC Exposure as of the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit, and
Β
3.Β all outstanding Credit Events on and as of the last Business Day of each calendar quarter and, during the continuation of an Event of Default, on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders.
Β
Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clausesΒ (a), (b)Β and (c)Β is herein described as a βComputation Dateβ with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.
Β
E.Β Swingline Loans
Β
.Β Β (b) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans in Dollars to the Company from time to time during the Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i)Β the aggregate principal amount of outstanding Swingline Loans exceeding $10,000,000 or (ii)Β the Dollar Amount of the total Revolving Credit Exposures exceeding the Aggregate Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.Β Β Within the foregoing limits and subject to the terms and conditions set forth herein, the Company may borrow, prepay and reborrow Swingline Loans.
Β
1.Β To request a Swingline Loan, the Company shall notify the Administrative Agent of such request by telephone (confirmed by telecopy or βpdfβ or similar email attachment), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan.Β Β Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan.Β Β The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Company.Β Β The Swingline Lender shall make each Swingline Loan available to the Company by means of a credit to the general deposit account of the Company with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in SectionΒ 2.06(e), by remittance to the Issuing Bank) by 3:00Β p.m., New York City time, on the requested date of such Swingline Loan.
Β
2.Β The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00Β a.m., New York City time, on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding.Β Β Such notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.Β Β Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to eachΒ Β Lender, specifying in such notice such Lenderβs Applicable Percentage of such Swingline Loan or Loans.Β Β Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lenderβs Applicable Percentage of such Swingline Loan or Loans.Β Β Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.Β Β Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in SectionΒ 2.07 with respect to Loans made by such Lender (and SectionΒ 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders.Β Β The Administrative Agent shall notify the Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.Β Β Any amounts received by the Swingline Lender from the Company (or other party on behalf of the Company) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Company for any reason.Β Β The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Company of any default in the payment thereof.
Β
F.Β Letters of Credit
Β
.Β Β (c)General.Β Β Subject to the terms and conditions set forth herein, the Company may request the issuance of Letters of Credit denominated in Agreed Currencies as the applicant thereof for the support of its or its Subsidiariesβ obligations, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Availability Period.Β Β In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Company to, or entered into by the Company with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control; provided, however, if the Issuing Bank is requested to issue Letters of Credit with respect to a jurisdiction the Issuing Bank deems, in its reasonable judgment, may at any time subject it to a New Money Credit Event or a Country Risk Event, the Company shall, at the request of the Issuing Bank, guaranty and indemnify the Issuing Bank against any and all costs, liabilities and losses resulting from such New Money Credit Event or Country Risk Event, in each case in a form and substance reasonably satisfactory to the Issuing Bank.Β Β The letters of credit identified on ScheduleΒ 2.06 (the βExisting Letters of Creditβ) shall be deemed to be βLetters of Creditβ issued on the Effective Date for all purposes of the Loan Documents.Β Β The Company unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of any Subsidiaryβs obligations as provided in the first sentence of this paragraph, the Company will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under SectionΒ 2.12(b) to the same extent as if it were the sole account party in respect of such Letter of Credit (the Company hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such a Subsidiary that is an account party in respect of any such Letter of Credit).
Β
1.Β Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.Β Β To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Company shall hand deliver or telecopy (or transmit by electronic communication, βpdfβ or similar attachment, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraphΒ (c) of this Section), the amount of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.Β Β If requested by the Issuing Bank, the Company also shall submit a letter of credit application on the Issuing Bankβs standard form in connection with any request for a Letter of Credit.Β Β A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i)Β subject to SectionsΒ 2.04 and 2.11(b), the Dollar Amount of the LC Exposure shall not exceed $50,000,000 and (ii)Β subject to SectionsΒ 2.04 and 2.11(b), the sum of the Dollar Amount of the total Revolving Credit Exposures shall not exceed the Aggregate Commitment.
Β
2.Β Expiration Date.Β Β Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i)Β the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii)Β the date that is five (5)Β Business Days prior to the Maturity Date; provided, that a Letter of Credit may expire up to one (1) year beyond the Maturity Date so long as the Company cash collateralizes 102% of the face amount of such Letter of Credit in the currency of such Letter of Credit by no later than sixty (60) days prior to the Maturity Date pursuant to cash collateral arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank.
Β
3.Β Participations.Β Β By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lenderβs Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.Β Β In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lenderβs Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Company on the date due as provided in paragraphΒ (e) of this Section, or of any reimbursement payment required to be refunded to the Company for any reason.Β Β Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
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4.Β Reimbursement.Β Β If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Company shall reimburse such LC Disbursement by paying to the Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date the Issuing Bank made such LC Disbursement (or if the Issuing Bank shall so elect in its sole discretion by notice to the Company, in such other Agreed Currency which was paid by the Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later than 12:00 noon, Local Time, on the date that such LC Disbursement is made, if such date is a Business Day and the Company shall have received notice of such LC Disbursement prior to 10:00Β a.m., Local Time, on such date, or, if such notice has not been received by the Company prior to such time on such date or if such date is not a Business Day, then not later than 12:00 noon, Local Time, on the Business Day immediately following the day that the Company receives such notice, if such notice is not received prior to such time on the day of receipt; provided that, if such LC Disbursement is not less than the Dollar Amount of $1,000,000, the Company may, subject to the conditions to borrowing set forth herein, request in accordance with SectionΒ 2.03 or 2.05 that such payment be financed with (i)Β to the extent such LC Disbursement was made in Dollars, an ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan in Dollars in an amount equal to such LC Disbursement or (ii)Β to the extent that such LC Disbursement was made in a Foreign Currency, a Eurocurrency Revolving Borrowing in such Foreign Currency in an amount equal to such LC Disbursement and, in each case, to the extent so financed, the Companyβs obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan, as applicable.Β Β If the Company fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Company in respect thereof and such Lenderβs Applicable Percentage thereof.Β Β Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Company, in the same manner as provided in SectionΒ 2.07 with respect to Loans made by such Lender (and SectionΒ 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders.Β Β Promptly following receipt by the Administrative Agent of any payment from the Company pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear.Β Β Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Company of its obligation to reimburse such LC Disbursement.Β Β If the Companyβs reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency would subject the Administrative Agent, the Issuing Bank or any Lender to any stamp duty, adΒ valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, the Company shall, at its option, either (x)Β pay the amount of any such tax requested by the Administrative Agent, the Issuing Bank or the relevant Lender or (y)Β reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount equal to the Equivalent Amount, calculated using the applicable Exchange Rates, on the date such LC Disbursement is made, of such LC Disbursement.
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5.Β Obligations Absolute.Β Β The Companyβs obligation to reimburse LC Disbursements as provided in paragraphΒ (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i)Β any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii)Β any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii)Β payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv)Β any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Companyβs obligations hereunder.Β Β Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Company to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Company to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing Bankβs failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.Β Β The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.Β Β In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
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6.Β Disbursement Procedures.Β Β The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.Β Β The Issuing Bank shall promptly notify the Administrative Agent and the Company by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Company of its obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC Disbursement.
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7.Β Interim Interest.Β Β If the Issuing Bank shall make any LC Disbursement, then, unless the Company shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Company reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans (or in the case such LC Disbursement is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency plus the then effective Applicable Rate with respect to Eurocurrency Revolving Loans); provided that, if the Company fails to reimburse such LC Disbursement when due pursuant to paragraphΒ (e) of this Section, then SectionΒ 2.13(e) shall apply.Β Β Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraphΒ (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.
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8.Β Replacement of the Issuing Bank.Β Β The Issuing Bank may be replaced at any time by written agreement among the Company, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.Β Β The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank.Β Β At the time any such replacement shall become effective, the Company shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to SectionΒ 2.12(b)(ii).Β Β From and after the effective date of any such replacement, (i)Β the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii)Β references herein to the term βIssuing Bankβ shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.Β Β After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
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9.Β Cash Collateralization.Β Β If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Company shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 102% of the Dollar Amount of the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that (i)Β the portions of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that the Company is not late in reimbursing shall be deposited in the applicable Foreign Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii)Β the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Company described in clauseΒ (h) or (i)Β of ArticleΒ VII.Β Β For the purposes of this paragraph, the Foreign Currency LC Exposure shall be calculated using the applicable Exchange Rate on the date notice demanding cash collateralization is delivered to the Company.Β Β The Company also shall deposit cash collateral pursuant to this paragraph as and to the extent required by SectionΒ 2.11(b).Β Β Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Obligations.Β Β The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account.Β Β Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Companyβs risk and expense, such deposits shall not bear interest.Β Β Interest or profits, if any, on such investments shall accumulate in such account.Β Β Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Company for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC ExposureΒ Β representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations.Β Β If the Company is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three (3)Β Business Days after all Events of Default have been cured or waived.
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10.Β Conversion.Β Β In the event that the Loans become immediately due and payable on any date pursuant to ArticleΒ VII, all amounts (i)Β that the Company is at the time or thereafter becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC Disbursements made under any Foreign Currency Letter of Credit (other than amounts in respect of which the Company has deposited cash collateral pursuant to paragraphΒ (j) above, if such cash collateral was deposited in the applicable Foreign Currency to the extent so deposited or applied), (ii)Β that the Lenders are at the time or thereafter become required to pay to the Administrative Agent and the Administrative Agent is at the time or thereafter becomes required to distribute to the Issuing Bank pursuant to paragraphΒ (e) of this Section in respect of unreimbursed LC Disbursements made under any Foreign Currency Letter of Credit and (iii)Β of each Lenderβs participation in any Foreign Currency Letter of Credit under which an LC Disbursement has been made shall, automatically and with no further action required, be converted into the Dollar Amount, calculated using the Administrative Agentβs currency exchange rates on such date (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is made), of such amounts.Β Β On and after such conversion, all amounts accruing and owed to the Administrative Agent, the Issuing Bank or any Lender in respect of the obligations described in this paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.
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G.Β Funding of Borrowings
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.Β Β (d) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i)Β in the case of Loans denominated in Dollars, by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders and (ii)Β in the case of each Loan denominated in a Foreign Currency, by 12:00 noon, Local Time, in the city of the Administrative Agentβs Applicable Payment Office for such currency and at such Applicable Payment Office for such currency; provided that Swingline Loans shall be made as provided in SectionΒ 2.05.Β Β The Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting the amounts so received, in like funds, to (x)Β an account of such Borrower maintained with the Administrative Agent in New York City or Chicago and designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in Dollars and (y)Β an account of such Borrower in the relevant jurisdiction and designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in SectionΒ 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
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1.Β Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing (or in the case of an ABR Borrowing, prior to 12:00 noon, New York City time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lenderβs share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraphΒ (a) of this Section and may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.Β Β In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i)Β in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency) or (ii) (x)Β in the case of such Borrower (other than a Canadian Borrower in respect of a Canadian Revolving Loan), the interest rate applicable to ABR Loans and (y)Β in the case of a Canadian Borrower in respect of a Canadian Revolving Loan, an interest rate equal to the Canadian Prime Rate plus the then effective Applicable Rate in respect of ABR Loans.Β Β If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenderβs Loan included in such Borrowing.
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H.Β Interest Elections
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.Β Β (e) Subject to the provisions of this SectionΒ 2.08 and of SectionsΒ 2.13 and 2.14, (i)Β Revolving Loans (other than Canadian Revolving Loans) may be made or maintained only as ABR Loans or Eurocurrency Loans and (ii)Β Canadian Revolving Loans may be made or maintained only as BA Equivalent Loans.Β Β Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing or a BA Equivalent Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.Β Β Thereafter, the relevant Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Revolving Borrowing or a BA Equivalent Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section.Β Β A Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.Β Β This Section shall not apply to Swingline Borrowings, which may not be converted or continued.
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1.Β To make an election pursuant to this Section, a Borrower, or the Company on its behalf, shall notify the Administrative Agent of such election (by telephone or irrevocable written notice in the case of a Borrowing denominated in Dollars or a Canadian Revolving Borrowing or by irrevocable written notice (via an Interest Election Request signed by such Borrower, or the Company on its behalf) in the case of a Borrowing denominated in a Foreign Currency (other than a Canadian Revolving Borrowing)) by the time that a Borrowing Request would be required under SectionΒ 2.03 if such Borrower were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election.Β Β Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy or delivery by βpdfβ or similar email attachment to the Administrative Agent of a written Interest Election Request signed by the relevant Borrower, or the Company on its behalf.Β Β Notwithstanding any contrary provision herein, this Section shall not be construed to permit any Borrower to (i)Β change the currency of any Borrowing, (ii)Β elect an Interest Period for Eurocurrency Loans or BA Equivalent Loans that does not comply with SectionΒ 2.02(d) or (iii)Β convert any Borrowing to a Borrowing of a Type not available under such Borrowing.
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2.Β Each telephonic and written Interest Election Request shall specify the following information in compliance with SectionΒ 2.02:
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a)Β the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clausesΒ (iii), (iv)Β and (v)Β below shall be specified for each resulting Borrowing);
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b)Β the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
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c)Β in the case of a Eurocurrency Borrowing, whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
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d)Β in the case of a Canadian Revolving Borrowing, stating that the resulting Borrowing is to be a BA Equivalent Borrowing; and
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e)Β if the resulting Borrowing is a Eurocurrency Borrowing or a BA Equivalent Borrowing, the Interest Period and Agreed Currency to be applicable thereto after giving effect to such election, which Interest Period shall be a period contemplated by the definition of the term βInterest Periodβ.
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If any such Interest Election Request requests a Eurocurrency Borrowing or a BA Equivalent Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to have selected an Interest Period of one monthβs duration.
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3.Β Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lenderβs portion of each resulting Borrowing.
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4.Β If the relevant Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Revolving BorrowingΒ Β or BA Equivalent Revolving Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i)Β in the case of a Borrowing denominated in Dollars, such Borrowing shall be converted to an ABR Borrowing and (ii)Β in the case of a Borrowing denominated in a Foreign Currency in respect of which the applicable Borrower shall have failed to deliver an Interest Election Request prior to the third (3rd)Β Business Day preceding the end of such Interest Period, such Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Agreed Currency with an Interest Period of one month unless such Eurocurrency Borrowing is or was repaid in accordance with SectionΒ 2.11 and (iii)Β in the case of a BA Equivalent Borrowing, such Borrowing shall automatically continue as a BA Equivalent Borrowing with an Interest Period of one month unless such BA Equivalent Borrowing is or was repaid in accordance with SectionΒ 2.11.Β Β Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so long as an Event of Default is continuing (i)Β no outstanding Revolving Borrowing denominated in Dollars may be converted to or continued as a Eurocurrency Borrowing, (ii)Β unless repaid, each Eurocurrency Revolving Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto but without duplication for interest payments made by any Borrower on such amount and (iii)Β unless repaid, each Eurocurrency Revolving Borrowing denominated in a Foreign Currency shall automatically be continued as a Eurocurrency Borrowing with an Interest Period of one month and (iv)Β unless repaid, each BA Equivalent Borrowing shall automatically be continued as a BA Equivalent Borrowing with an Interest Period of one month.
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I.Β Termination and Reduction of Commitments
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. (f) Unless previously terminated, the Commitments shall terminate on the Maturity Date.
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1.Β The Company may at any time terminate, or from time to time reduce, the Commitments; provided that (i)Β each reduction of the Commitments shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 and (ii)Β the Company shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with SectionΒ 2.11, the Dollar Amount of the sum of the Revolving Credit Exposures would exceed the Aggregate Commitment.
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2.Β The Company shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraphΒ (b) of this Section at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.Β Β Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.Β Β Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.Β Β Any termination or reduction of the Commitments shall be permanent.Β Β Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.
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J.Β Repayment of Loans; Evidence of Debt
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.Β Β (g) Each Borrower hereby unconditionally promises to pay (i)Β to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan made to suchΒ Β Borrower on the Maturity Date in the currency of such Loan and (ii)Β in the case of the Company, to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two (2)Β Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Company shall repay all Swingline Loans then outstanding.
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1.Β Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
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2.Β The Administrative Agent shall maintain accounts in which it shall record (i)Β the amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the Interest Period applicable thereto, (ii)Β the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii)Β the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lenderβs share thereof.
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3.Β The entries made in the accounts maintained pursuant to paragraphΒ (b) or (c)Β of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.
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4.Β Any Lender may request that Loans made by it to any Borrower be evidenced by a promissory note.Β Β In such event, the relevant Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.Β Β Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to SectionΒ 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
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K.Β Prepayment of Loans
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1.Β Any Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with the provisions of this SectionΒ 2.11(a).Β Β The applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy or βpdfβ or similar email attachment) of any prepayment hereunder (i)Β in the case of prepayment of a Eurocurrency Revolving Borrowing or a BA Equivalent Revolving Borrowing, not later than 11:00Β a.m., Local Time, three (3)Β Business Days before the date of prepayment, (ii)Β in the case of prepayment of an ABR Revolving Borrowing, not later than 11:00Β a.m., New York City time, one (1)Β Business Day before the date of prepayment or (iii)Β in the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment.Β Β Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by SectionΒ 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with SectionΒ 2.09.Β Β Promptly following receipt of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.Β Β Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in SectionΒ 2.02.Β Β Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.Β Β Prepayments shall be accompanied by (i)Β accrued interest to the extent required by SectionΒ 2.13 and (ii)Β break funding payments pursuant to SectionΒ 2.16.
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2.Β If at any time, (i)Β other than as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (calculated, with respect to those Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) exceeds the Aggregate Commitment and (ii)Β solely as a result of fluctuations in currency exchange rates, the sum of the aggregate principal Dollar Amount of all of the outstanding Revolving Loans and LC Exposure, in each case denominated in Foreign Currencies (collectively, βForeign Currency Exposureβ), as of the most recent Computation Date with respect to each such Credit Event, exceeds 105% of the Aggregate Commitment, the Borrowers shall immediately repay Borrowings or cash collateralize LC Exposure in an account with the Administrative Agent pursuant to SectionΒ 2.06(j), as applicable, in an aggregate principal amount sufficient to cause the aggregate Dollar Amount of all Revolving Credit Exposures (so calculated) to be less than or equal to the Aggregate Commitment.
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L.Β Fees
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.Β Β (h) The Company agrees to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which such Commitment terminates; provided that, if such Lender continues to have any Revolving Credit Exposure after its Commitment terminates, then such commitment fee shall continue to accrue on the daily amount of such Lenderβs Revolving Credit Exposure from and including the date on which its Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.Β Β Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof; provided that any commitment fees accruing after the date on which the Commitments terminate shall be payable on demand.Β Β All commitment fees shall be computed on the basis of a year of 360Β days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
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1.Β The Company agrees to pay (i)Β to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans on the average daily Dollar Amount of such Lenderβs LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lenderβs Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii)Β to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily Dollar Amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by the Issuing Bank during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bankβs standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit or processing of drawings thereunder.Β Β Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third (3rd)Β Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand.Β Β Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10)Β days after demand.Β Β All participation fees and fronting fees shall be computed on the basis of a year of 360Β days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).Β Β Participation fees and fronting fees in respect of Letters of Credit denominated in Dollars shall be paid in Dollars, and participation fees and fronting fees in respect of Letters of Credit denominated in a Foreign Currency shall be paid in such Foreign Currency.
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2.Β The Company agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.
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3.Β All fees payable hereunder shall be paid on the dates due, in Dollars (except as otherwise expressly provided in this SectionΒ 2.12) and immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders.Β Β Fees paid shall not be refundable under any circumstances.
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M.Β Interest
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.Β Β (i) The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
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1.Β The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
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2.Β [Intentionally Omitted].
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3.Β The Loans comprising each BA Equivalent Borrowing shall bear interest at the BA Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
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4.Β Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i)Β in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii)Β in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraphΒ (a) of this Section (or if such amount is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency plus the then effective Applicable Rate with respect to Eurocurrency Revolving Loans).
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5.Β Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of the Commitments; provided that (i)Β interest accrued pursuant to paragraphΒ (e) of this Section shall be payable on demand, (ii)Β in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii)Β in the event of any conversion of any Eurocurrency Revolving Loan or BA Equivalent Revolving Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.Β Β All interest shall be payable in the currency in which the applicable Loan is denominated.
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6.Β All interest hereunder shall be computed on the basis of a year of 360Β days, except that interest (i)Β computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365Β days (or 366Β days in a leap year), (ii)Β for Borrowings denominated in Pounds Sterling shall be computed on the basis of a year of 365Β days and (iii)Β for Canadian Revolving Borrowings shall be computed on the basis of a year of 365Β days (or 366Β days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).Β Β The applicable Alternate Base Rate, Adjusted LIBO Rate, LIBO Rate or BA Equivalent Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
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N.Β Alternate Rate of Interest
Β
.Β Β If prior to the commencement of any Interest Period for a Eurocurrency Borrowing or a BA Equivalent Borrowing:
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1.Β the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining (i)Β in the case of a Eurocurrency Borrowing, the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period or (ii)Β in the case of a BA Equivalent Borrowing, the BA Rate for such Interest Period; or
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2.Β the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the LIBO Rate or the BA Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
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then the Administrative Agent shall give notice thereof to the applicable Borrower and the Lenders by telephone, telecopy or βpdfβ or similar email attachment as promptly as practicable thereafter and, until the Administrative Agent notifies the applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i)Β any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency Borrowing or a BA Equivalent Borrowing, as applicable, shall be ineffective and, unless repaid, (A)Β in the case of a Eurocurrency Borrowing denominated in Dollars, such Borrowing shall be made as an ABR Borrowing, (B)Β in the case of a Eurocurrency Borrowing denominated in a Foreign Currency, such Eurocurrency Borrowing shall be repaid on the last day of the then current Interest Period applicable thereto and (C)Β in the case of any BA Equivalent Borrowing, such Borrowing shall be repaid on the last day of the then current Interest Period applicable thereto, (ii)Β if any Borrowing Request requests a Eurocurrency Revolving Borrowing in Dollars, such Borrowing shall be made as an ABR Borrowing (and if any BorrowingΒ Β Request requests a Eurocurrency Revolving Borrowing denominated in a Foreign Currency, such Borrowing Request shall be ineffective) and (iii)Β if any Borrowing Request requests a BA Equivalent Revolving Borrowing, such Borrowing Request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.
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O.Β Increased Costs
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.Β Β (j) If any Change in Law shall:
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a)Β impose, modify or deem applicable any reserve, special deposit or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
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b)Β impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
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c)Β subject any Recipient to any Taxes or UK Tax (other than (A)Β Indemnified Taxes, (B)Β Taxes described in clausesΒ (b) through (d)Β of the definition of Excluded Taxes, (C)Β Connection Income Taxes or (D)Β UK Tax consisting of a Tax Deduction required by law to be made by a Borrower or compensated for by SectionΒ 2.17A) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan or of maintaining its obligation to make any such Loan (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise (including, without limitation, pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the applicable Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered as reasonably determined by such Lender, the Issuing Bank or such other Recipient (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of the applicable Lender, the Issuing Bank or such other Recipient under agreements having provisions similar to this Section 2.15 after consideration of such factors as such Lender, the Issuing Bank or such other Recipient then reasonably determines to be relevant).
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2.Β If any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenderβs or the Issuing Bankβs capital or on the capital of such Lenderβs or the Issuing Bankβs holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lenderβs or the Issuing Bankβs holding company could have achieved but for such Change in Law (taking into consideration such Lenderβs or the Issuing Bankβs policies and the policies of such Lenderβs or the Issuing Bankβs holding company with respect to capital adequacy and liquidity), then from time to time the applicable Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lenderβs or the Issuing Bankβs holding company for any such reduction suffered.
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3.Β A certificate of a Lender or the Issuing Bank setting forth in reasonable detail (including the cause for its determination) the amount or amounts determined by such Lender or the Issuing Bank in good faith necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraphΒ (a) or (b)Β of this Section shall be delivered to the Company and shall be conclusive absent manifest error.Β Β The Company shall pay, or cause the other Borrowers to pay, such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within fifteen (15)Β days after receipt thereof.
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4.Β Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lenderβs or the Issuing Bankβs right to demand such compensation; provided that no Borrower shall be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180Β days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Company of the Change in Law (accompanied by a reasonably detailed description thereof) giving rise to such increased costs or reductions and of such Lenderβs or the Issuing Bankβs intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
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P.Β Break Funding Payments
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.Β Β In the event of (a)Β the payment of any principal of any Eurocurrency Loan or BA Equivalent Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to SectionΒ 2.11), (b)Β the conversion of any Eurocurrency Loan or BA Equivalent Loan other than on the last day of the Interest Period applicable thereto, (c)Β the failure to borrow, convert, continue or prepay any Eurocurrency Loan or BA Equivalent Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under SectionΒ 2.11(a) and is revoked in accordance therewith) or (d)Β the assignment of any Eurocurrency Loan or BA Equivalent Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to SectionΒ 2.19, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event.Β Β 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)Β the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate or BA Equivalent Rate, as applicable, 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)Β the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant currency of a comparable amount and period from other banks in the eurocurrency market or Canadian bank market, as applicable.Β Β A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the applicable Borrower and shall be conclusive absent manifest error.Β Β The applicable Borrower shall pay such Lender the amount shown as due on any such certificate within fifteen (15)Β days after receipt thereof.
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Q.Β Taxes
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. (k)Payments Free of Taxes.Β Β Any and all payments by or on account of any obligation of any Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.Β Β If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this SectionΒ 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
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1.Β Payment of Other Taxes by the Borrowers.Β Β The relevant Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.
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2.Β Evidence of Payments.Β Β As soon as practicable after any payment of Taxes by any Borrower to a Governmental Authority pursuant to this SectionΒ 2.17, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, and a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
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3.Β Indemnification by the Borrowers.Β Β The Borrowers shall indemnify each Recipient, within thirty (30)Β days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable and documented expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.Β Β A certificate setting forth in reasonable detail the amount of such payment or liability and describing the basis for the indemnification claim delivered to the relevant Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, setting forth in reasonable detail the manner in which such amount shall have been determined, shall be conclusive, absent manifest error.
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4.Β Indemnification by the Lenders.Β Β Each Lender shall severally indemnify the Administrative Agent, within thirty (30) days after written demand therefor, for (i)Β any Indemnified Taxes attributable to such Lender (but only to the extent that any Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrowers to do so), (ii)Β any Taxes attributable to such Lenderβs failure to comply with the provisions of SectionΒ 9.04(c) relating to the maintenance of a Participant Register and (iii)Β any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.Β Β A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent, setting forth in reasonable detail the manner in which such amount shall have been determined, shall be conclusive, absent manifest error.Β Β Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraphΒ (e).
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5.Β Status of Lenders.Β Β (i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and duly executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.Β Β In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements.Β Β Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in SectionΒ 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lenderβs reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
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a)Β Without limiting the generality of the foregoing, in the event that any Borrower is a U.S.Β Person:
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(1)Β each Lender that is a U.S.Β Person shall deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), duly completed and properly executed originals of IRS FormΒ W-9 (or any successor form) certifying that such Lender is exempt from U.S.Β Federal backup withholding tax;
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(2)Β each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement and on or before the date, if any, such Lender changes its applicable lending office by designating a different lending office (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable;
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(a)Β in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x)Β with respect to payments of interest under any Loan Document, duly completed and properly executed originals of IRS FormΒ W-8BEN (or any successor form) establishing an exemption from, or reduction of, U.S.Β Federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y)Β with respect to any other applicable payments under any Loan Document, duly completed and properly executed IRS FormΒ W-8BEN (or any successor form) establishing an exemption from, or reduction of, U.S.Β Federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty;
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(b)Β in the case of a Foreign Lender for whom payments under any Loan Document constitute income that is effectively connected with such Lenderβs conduct of a trade or business in the United States, duly completed and properly executed originals of IRS FormΒ W-8ECI (or any successor form);
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(c)Β in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under SectionΒ 881(c) of the Code, (x)Β a duly completed and properly executed certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of SectionΒ 881(c)(3)(A) of the Code, a β10 percent shareholderβ of such Borrower within the meaning of SectionΒ 881(c)(3)(B) of the Code, or a βcontrolled foreign corporationβ described in SectionΒ 881(c)(3)(C) of the Code, or conducting a trade or business in the United States with which the relevant interest payments are effectively connected (a βU.S.Β Tax Compliance Certificateβ) and (y)Β duly completed and properly executed originals of IRS FormΒ W-8BEN (or any successor form); or
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(d)Β to the extent a Foreign Lender is not the beneficial owner of payments made under this Agreement (including a partnership or a participating lender), duly completed and properly executed originals of IRS FormΒ W-8IMY, accompanied by IRS FormΒ W-8ECI, IRS FormΒ W-8BEN, a U.S.Β Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS FormΒ W-9, and/or other certification documents (including any successors to the above-referenced forms) from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption under the Code, such Foreign Lender may provide a duly completed and properly executed U.S.Β Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;
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(3)Β each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement, and on or before the date, if any, such Lender changes its applicable lending office by designating a different lending office (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), properly executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S.Β Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
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(4)Β if a payment made to a Lender under any Loan Document would be subject to U.S.Β Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in SectionΒ 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to such Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such Borrower or the Administrative Agent such duly completed and properly executed documentation prescribed by applicable law (including as prescribed by SectionΒ 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenderβs obligations under FATCA or to determine the amount to deduct and withhold from such payment.Β Β Solely for purposes of this clauseΒ (D), βFATCAβ shall include any amendments made to FATCA after the date of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall deliver to the applicable Borrower and the Administrative Agent a duly completed and properly executed update of such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
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6.Β Treatment of Certain Refunds.Β Β If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this SectionΒ 2.17 (including by the payment of additional amounts pursuant to this SectionΒ 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this SectionΒ 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).Β Β Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraphΒ (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.Β Β Notwithstanding anything to the contrary in this paragraphΒ (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraphΒ (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.Β Β This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
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7.Β Survival.Β Β Each partyβs obligations under this SectionΒ 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
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8.Β Defined Terms.Β Β For purposes of this SectionΒ 2.17, the term βLenderβ includes the Issuing Bank and the term βapplicable lawβ includes FATCA.
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SECTION 2.17A.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β UK Tax and Irish Tax.
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(a)Β Β Β Β Β Β Β Β Β Β Β Unless a contrary indication appears, in this SectionΒ 2.17A a reference to βdeterminesβ or βdeterminedβ means a determination made in the absolute discretion of the person making the determination.
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(b)Β Β Β Β Β Β Β Β Β Β Β A Borrower shall make all payments to be made by it under a Loan Document without any Tax Deduction, unless a Tax Deduction is required by law.
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(c)Β Β Β Β Β Β Β Β Β Β Β A Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Administrative Agent accordingly.Β Β Similarly, a Lender shall notify the Administrative Agent on becoming so aware in respect of a payment payable to that Lender.Β Β If the Administrative Agent receives such notification from a Lender it shall notify the relevant Borrower.
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(d)Β Β Β Β Β Β Β Β Β Β Β If a Tax Deduction is required by law to be made by a Borrower under any Loan Document, the amount of the payment due from a Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
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(e)Β Β Β Β Β Β Β Β Β Β Β A Borrower is not required to make an increased payment to a Lender under clause (d) above for a Tax Deduction in respect of tax imposed by Ireland from a payment of interest on a Loan, if on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax Deduction if it was an Irish Qualifying Lender, but on that date that Lender is not or has ceased to be an Irish 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 any published practice or concession of any relevant taxing authority.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β An Irish Treaty Lender and a Borrower which makes a payment to which that Irish Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.
Β
(g)Β Β Β Β Β Β Β Β Β Β Β A Borrower is not required to make an increased payment to a Lender under clauseΒ (d) above for a Tax Deduction in respect of tax imposed by the United Kingdom from a payment of interest on a Loan, if on the date on which the payment falls due:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β the payment could have been made to the relevant Lender without a Tax Deduction if it 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 any published practice or concession of any relevant taxing authority; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β the relevant Lender is a Qualifying Lender solely under sub-paragraphΒ (i)(b) of the definition of Qualifying Lender and:
Β
(A)Β Β Β Β Β Β Β Β Β Β Β an officer of H.M.Β Β Revenue & Customs has given (and not revoked) a direction (a βDirectionβ) under section 931 of the ITA which relates to that payment and that Lender has received from a Borrower a certified copy of that Direction; and
Β
(B)Β Β Β Β Β Β Β Β Β Β Β the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β the relevant Lender is a Qualifying Lender solely by virtue of paragraphΒ (i)(b) of the definition of Qualifying Lender and:
Β
(A)Β Β Β Β Β Β Β Β Β Β Β the relevant Lender has not given a Tax Confirmation to the Company; and
Β
(B)Β Β Β Β Β Β Β Β Β Β Β the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an βexcepted paymentβ for the purpose of section 930 of the ITA; or
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β the relevant Lender is a Treaty Lender and a Borrower is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under clauseΒ (j) below.
Β
(h)Β Β Β Β Β Β Β Β Β Β Β If a Borrower is required to make a Tax Deduction, such Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Within 30Β days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, a Borrower shall deliver to the Administrative Agent for the Lender entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
Β
(j)Β Β Β Β Β Β Β Β Β Β Β (i) Subject to paragraphΒ (ii) below, a Treaty Lender and a Borrower which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Nothing in paragraphΒ (i) above shall require a Treaty Lender to:
Β
(A)Β Β Β Β Β Β Β Β Β Β Β register under the HMRC DT Treaty Passport scheme;
Β
(B)Β Β Β Β Β Β Β Β Β Β Β apply the HMRC DT Treaty Passport scheme to any Loan if it has so registered; or
Β
(C)Β Β Β Β Β Β Β Β Β Β Β file Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with paragraphΒ (i) below and the Borrower making that payment has not complied with its obligations under paragraphΒ (l) below.
Β
(k)Β Β Β Β Β Β Β Β Β Β Β A Treaty Lender which holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall provide an indication to that effect by notifying the Company of its scheme reference number and its jurisdiction of tax residence on the date that such Treaty Lender becomes a Lender under this Agreement.Β Β A Treaty Lender that is a party to this Agreement on the Effective Date may provide such notification by including such details on its signature page to this Agreement.
Β
(l)Β Β Β Β Β Β Β Β Β Β Β Where a Lender includes the indication described in paragraphΒ (k) above the relevant Borrower shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs, within 30 working days of the date such Lender becomes a Lender under this Agreement or, within 30 working days of the date such Borrower becomes a Borrower under this Agreement (as the case may be), and shall promptly provide the Lender with a copy of that filing.
Β
(m)Β Β Β Β Β Β Β Β Β Β Β A Borrower shall (within 3 Business Days of demand by the Administrative Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of UK Tax or Irish Tax by that Protected Party in respect of any Loan Document.
Β
(n)Β Β Β Β Β Β Β Β Β Β Β ClauseΒ (m) above shall not apply with respect to any UK Tax or any Irish Tax assessed on a Protected Party:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β under the law of the jurisdiction in which that Protected Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Protected Party is treated as resident for tax purposes; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β under the law of the jurisdiction in which that Protected Partyβs facility office is located in respect of amounts received or receivable in that jurisdiction,
Β
if that UK Tax or Irish Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Protected Party.
Β
(o)Β Β Β Β Β Β Β Β Β Β Β Furthermore, clauseΒ (m) above shall not apply to the extent a loss, liability or cost:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β is compensated for by an increased payment under clauseΒ (d) above; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β would have been compensated for by an increased payment under clauseΒ (d) above but was not so compensated solely because one of the exclusions in clausesΒ (e) or (g) applied.
Β
(p)Β Β Β Β Β Β Β Β Β Β Β A Protected Party making, or intending to make a claim under clauseΒ (m) above shall promptly notify the Administrative Agent of the event which will give, or has given, rise to the claim, following which the Administrative Agent shall notify the Borrowers.
Β
(q)Β Β Β Β Β Β Β Β Β Β Β A Protected Party shall, on receiving a payment from a Borrower under clauseΒ (m) above, notify the Administrative Agent.
Β
(r)Β Β Β Β Β Β Β Β Β Β Β If a Borrower makes a Tax Payment and the relevant Lender determines that:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part or to that Tax Payment; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β that Lender has obtained, utilized and retained that Tax Credit,
Β
the relevant Lender shall pay an amount to that Borrower which that Lender determines will leave it (after that payment) in the same after-tax position as it would have been in had the Tax Payment not been made by that Borrower.
Β
(s)Β Β Β Β Β Β Β Β Β Β Β A Borrower shall pay and, within three (3)Β Business Days of demand, indemnify each Credit Party against any cost, loss or liability that Credit Party incurs in relation to all stamp duty, registration and other similar UK Tax or Irish Tax payable in respect of any Loan Document (excluding, for the avoidance of doubt, any such UK Tax or Irish Tax arising in connection with an assignment or transfer by that Credit Party of its rights under any Loan Document).
Β
This SectionΒ 2.17A shall be deemed to constitute an integral part of SectionΒ 2.17 and any reference in this Agreement to Section 2.17 shall be deemed to include Section 2.17A.
Β
SECTION 2.17B.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β VAT.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β All amounts set out or expressed to be payable under a Loan Document by any party to a Credit Party which (in whole or part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clauseΒ (b) below, if VAT is or becomes chargeable on any supply made by any Credit Party to any party under a Loan Document and such Credit Party is required to account to the relevant tax authority for the VAT, that party shall pay to the Credit Party (in addition to and at the same time as paying the consideration for such supply) an amount equal to the amount of such VAT (and such Credit Party shall promptly provide an appropriate VAT invoice to such party).
Β
(b)Β Β Β Β Β Β Β Β Β Β Β If VAT is or becomes chargeable on any supply made by any Credit Party (the βSupplierβ) to any other Credit Party (the βRecipientβ) under a Loan Document, and any party other than the Recipient (the βSubject Partyβ) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), (i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Subject Party must also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT.Β Β The Recipient must (where this clauseΒ (b)(i) applies) promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT and (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Subject Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Where a Loan Document requires any party to reimburse a Credit Party for any costs or expenses, that party shall also at the same time pay and indemnify the Credit Party against all VAT incurred by the Credit Party in respect of the costs or expenses to the extent that the Credit Party reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Any reference in this SectionΒ 2.17B to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member or βparentβ of such group at such time (the term βrepresentative memberβ and βparentβ to have the same meaning as in the relevant legislation of any jurisdiction having implemented Council Directive 2006/112/EC on the common system of value added tax).
Β
(e)Β Β Β Β Β Β Β Β Β Β Β In relation to any supply made by a Credit Party to any party under a Loan Document, if reasonably requested by such Credit Party, that party must promptly provide such Credit Party with details of that party's VAT registration and such other information as is reasonably requested in connection with such Credit Party's VAT reporting requirements in relation to such supply.
Β
This SectionΒ 2.17B shall be deemed to constitute an integral part of SectionΒ 2.17.
Β
R.Β Payments Generally; Pro Rata Treatment; Sharing of Set-offs
Β
.
Β
1.Β Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under SectionΒ 2.15, 2.16 or 2.17, or otherwise) prior to (i)Β in the case of payments denominated in Dollars by the Company, 12:00 noon, New York City time and (ii)Β in the case of payments denominated in a Foreign Currency, 12:00 noon, Local Time, in the city of the Administrative Agentβs Applicable Payment Office for such currency, in each case on the date when due, in immediately available funds, without set-off or counterclaim.Β Β Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.Β Β All such payments shall be made (i)Β in the same currency in which the applicable Credit Event was made (or where such currency has been converted to euro, in euro) and (ii)Β to the Administrative Agent at its offices at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 or, in the case of a Credit Event denominated in a Foreign Currency, the Administrative Agentβs Applicable Payment Office for such currency, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to SectionsΒ 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.Β Β The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.Β Β If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.Β Β Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the βOriginal Currencyβ) no longer exists or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, then all payments to be made by such Borrower hereunder in such currency shall instead be made when due in Dollars in an amount equal to the Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.
Β
2.Β If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i)Β first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)Β second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
Β
3.Β 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 Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and participations in LC Disbursements and Swingline Loans; provided that (i)Β if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered,Β Β such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii)Β the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements and Swingline Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).Β Β Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
Β
4.Β Unless the Administrative Agent shall have received notice from the relevant Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.Β Β In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).
Β
5.Β If any Lender shall fail to make any payment required to be made by it pursuant to SectionΒ 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i)Β apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lenderβs obligations to it under such Section until all such unsatisfied obligations are fully paid and/or (ii)Β hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section; in the case of each of clausesΒ (i) and (ii)Β above, in any order as determined by the Administrative Agent in its discretion.
Β
S.Β Mitigation Obligations; Replacement of Lenders
Β
.Β Β (l) If any Lender requests compensation under SectionΒ 2.15, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to SectionΒ 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i)Β would eliminate or reduce amounts payable pursuant to SectionΒ 2.15 or 2.17, as the case may be, in the future and (ii)Β would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender.Β Β The Company hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
Β
1.Β If (i)Β any Lender requests compensation under SectionΒ 2.15, (ii)Β any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to SectionΒ 2.17 or (iii)Β any Lender becomes a Defaulting Lender or rejects the designation of a Foreign Subsidiary as an Eligible Foreign Subsidiary, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in SectionΒ 9.04), all its interests, rights (other than its existing rights to payments pursuant to SectionsΒ 2.15 or 2.17) and obligations under the Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (x)Β the Company shall have received the prior written consent of the Administrative Agent (and if a Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld or delayed , (y)Β such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts) and (z)Β in the case of any such assignment resulting from a claim for compensation under SectionΒ 2.15 or payments required to be made pursuant to SectionΒ 2.17, such assignment will result in a reduction in such compensation or payments.Β Β A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
Β
T.Β Expansion Option
Β
.Β Β The Company may from time to time elect to increase the Commitments or enter into one or more tranches of term loans (each, an βIncremental Term Loanβ), in each case in minimum increments of $25,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $250,000,000.Β Β The Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Commitment, or to participate in such Incremental Term Loans, an βIncreasing Lenderβ), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an βAugmenting Lenderβ), to increase their existing Commitments, or to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i)Β each Augmenting Lender, shall be subject to the approval of the Company and consent to by the Administrative Agent (such consent not to be unreasonably withheld or delayed) and (ii) (x)Β in the case of an Increasing Lender, the Company and such Increasing Lender execute an agreement substantially in the form of ExhibitΒ C hereto, and (y)Β in the case of an Augmenting Lender, the Company and such Augmenting Lender execute an agreement substantially in the form of ExhibitΒ D hereto.Β Β No consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this SectionΒ 2.20.Β Β Increases and new Commitments and Incremental Term Loans created pursuant to this SectionΒ 2.20 shall become effective on the date agreed by the Company, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders and the Administrative Agent shall notify each Lender thereof.Β Β Notwithstanding the foregoing, no increase in the Commitments (or in the Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i)Β on the proposed date of the effectiveness of such increase or Incremental Term Loans, (A)Β the conditions set forth in paragraphsΒ (a) and (b)Β of SectionΒ 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Company and (B)Β the Company shall be in compliance (on a proΒ forma basis reasonably acceptable to the Administrative Agent) with the covenants contained in SectionΒ 6.10 and (ii)Β the Administrative Agent shall have received documents consistent with those delivered on the Effective Date as to the corporate power and authority of the Borrowers to borrow hereunder after giving effect to such increase.Β Β On the effective date of any increase in the Commitments or any Incremental Term Loans being made, (i)Β each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lenderβs portion of the outstanding Revolving Loans of all the Lenders to equal its Applicable Percentage of such outstanding Revolving Loans, and (ii)Β except in the case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of SectionΒ 2.03).Β Β The deemed payments made pursuant to clauseΒ (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan or BA Equivalent Loan, shall be subject to indemnification by the Borrowers pursuant to the provisions of SectionΒ 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods.Β Β The Incremental Term Loans (a)Β shall rank pariΒ passu in right of payment with the Revolving Loans, (b)Β shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c)Β shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i)Β the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (ii)Β the Incremental Term Loans may be priced differently than the Revolving Loans.Β Β Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an βIncremental Term Loan Amendmentβ) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent.Β Β The Incremental Term Loan Amendment 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 reasonable opinion of the Administrative Agent, to effect the provisions of this SectionΒ 2.20.Β Β Nothing contained in this SectionΒ 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder, or provide Incremental Term Loans, at any time.
Β
U.Β Market Disruption
Β
.Β Β Notwithstanding the satisfaction of all conditions referred to in ArticleΒ II and ArticleΒ IV with respect to any Credit Event to be effected in any Foreign Currency, if (i)Β there shall occur on or prior to the date of such Credit Event any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which would in the reasonable opinion of the Administrative Agent, the Issuing Bank (if such Credit Event is a Letter of Credit) or the Required Lenders make it impracticable for the Eurocurrency Borrowings or Letters of Credit comprising such Credit Event to be denominated in the Agreed Currency specified by the applicable Borrower or (ii)Β an Equivalent Amount of such currency is not readily calculable, then the Administrative Agent shall forthwith give notice thereof to such Borrower, the Lenders and, if such Credit Event is a Letter of Credit, the Issuing Bank, and such Credit Events shall not be denominated in such Agreed Currency but shall, except as otherwise set forth in SectionΒ 2.07, be made on the date of such Credit Event in Dollars, (a)Β if such Credit Event is a Borrowing, in an aggregate principal amount equal to the Dollar Amount of the aggregate principal amount specified in the related request for a Credit Event or Interest Election Request, as the case may be, as ABR Loans, unless such Borrower notifies the Administrative Agent at least one Business Day before such date that (i)Β it elects not to borrow on such date or (ii)Β it elects to borrow on such date in a different Agreed Currency, as the case may be, in which the denomination of such Loans would in the reasonable opinion of the Administrative Agent and the Required Lenders be practicable and in an aggregate principal amount equal to the Dollar Amount of the aggregate principal amount specified in the related request for a Credit Event or Interest Election Request, as the case may be or (b)Β if such Credit Event is a Letter of Credit, in a face amount equal to the Dollar Amount of the face amount specified in the related request or application for such Letter of Credit, unless such Borrower notifies the Administrative Agent at least one (1)Β Business Day before such date that (i)Β it elects not to request the issuance of such Letter of Credit on such date or (ii)Β it elects to have such Letter of Credit issued on such date in a different Agreed Currency, as the case may be, in which the denomination of such Letter of Credit would in the reasonable opinion of the Issuing Bank, the Administrative Agent and the Required Lenders be practicable and in face amount equal to the Dollar Amount of the face amount specified in the related request or application for such Letter of Credit, as the case may be.
Β
V.Β Judgment Currency
Β
.Β Β If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from any Borrower hereunder in the currency expressed to be payable herein (the βspecified currencyβ) 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 the specified currency with such other currency at the Administrative Agentβs main New York City office on the Business Day preceding that on which final, non-appealable judgment is given.Β Β The obligations of each Borrower in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency.Β Β If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Administrative Agent, as the case may be, in the specified currency, each Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a)Β the sum originally due to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b)Β any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under SectionΒ 2.18, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to such Borrower.
Β
W.Β Designation and Termination of Foreign Subsidiary Borrowers
Β
.Β Β The Company may at any time and from time to time designate any Eligible Foreign Subsidiary as a Foreign Subsidiary Borrower by delivery to the Administrative Agent of a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company and the satisfaction of the other conditions precedent set forth in SectionΒ 4.03, and upon such delivery and satisfaction such Subsidiary shall for all purposes of this Agreement be a Foreign Subsidiary Borrower and a party to this Agreement.Β Β Each Foreign Subsidiary Borrower shall remain a Foreign Subsidiary Borrower until the Company shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a Foreign Subsidiary Borrower and a party to this Agreement.Β Β Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination will become effective as to any Foreign Subsidiary Borrower at a time when any principal of or interest on any Loan to such Borrower shall be outstanding hereunder, provided that such Borrowing Subsidiary Termination shall be effective to terminate the right of such Foreign Subsidiary Borrower to make further Borrowings under this Agreement.Β Β As soon as practicable upon receipt of a Borrowing Subsidiary Agreement, the Administrative Agent shall furnish a copy thereof to each Lender.
Β
X.Β Senior Debt
Β
.Β Β The Company hereby designates all Obligations now or hereinafter incurred or otherwise outstanding, and agrees that the Obligations shall at all times constitute, senior indebtedness and designated senior indebtedness, or terms of similar import, which are entitled to the benefits of the subordination provisions of all Subordinated Indebtedness.
Β
Y.Β Defaulting Lenders
Β
.Β Β Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
Β
(i)Β fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to SectionΒ 2.12(a);
Β
(ii)Β the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to SectionΒ 9.02); provided, that, except as otherwise provided in SectionΒ 9.02, this clauseΒ (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby that by its terms affects any Defaulting Lender more adversely than other directly affected Lenders;
Β
(iii)Β if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
Β
§ all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) no Event of Default has occurred and is continuing at the time of such reallocation and (B) the sum of all non-Defaulting Lendersβ Revolving Credit Exposures plus such Defaulting Lenderβs Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lendersβ Commitments;
Β
§ if the reallocation described in clauseΒ (i) above cannot, or can only partially, be effected, the Company shall within one (1)Β Business Day following notice by the Administrative Agent (x)Β first, prepay such Swingline Exposure and (y)Β second, cash collateralize for the benefit of the Issuing Bank only the Borrowersβ obligations corresponding to such Defaulting Lenderβs LC Exposure (after giving effect to any partial reallocation pursuant to clauseΒ (i) above) in accordance with the procedures set forth in SectionΒ 2.06(j) for so long as such LC Exposure is outstanding;
Β
§ if the Company cash collateralizes any portion of such Defaulting Lenderβs LC Exposure pursuant to clauseΒ (ii) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to SectionΒ 2.12(b) with respect to such Defaulting Lenderβs LC Exposure during the period such Defaulting Lenderβs LC Exposure is cash collateralized;
Β
§ if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clauseΒ (i) above, then the fees payable to the Lenders pursuant to SectionΒ 2.12(a) and SectionΒ 2.12(b) shall be adjusted in accordance with such non-Defaulting Lendersβ Applicable Percentages; and
Β
§ if all or any portion of such Defaulting Lenderβs LC Exposure is neither reallocated nor cash collateralized pursuant to clauseΒ (i) or (ii)Β above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under SectionΒ 2.12(b) with respect to such Defaulting Lenderβs LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
Β
(iv)Β so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lenderβs then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with SectionΒ 2.25(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with SectionΒ 2.25(c)(i) (and such Defaulting Lender shall not participate therein).
Β
If (i)Β a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii)Β the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender thereunder.
Β
In the event that the Administrative Agent, the Company, the Swingline Lender and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lenderβs Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Β
Z.Β Interest Act (Canada), Etc
Β
.
Β
1.Β For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith by any Canadian Borrower is to be calculated on the basis of a 360-day, 365-day or 366-day year or any other period of time that is less than an actual calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360, 365 or 366 or such other period of time, as applicable.Β Β The rates of interest under this Agreement are nominal rates, and not effective rates or yields.Β Β The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement.
Β
2.Β If any provision of this Agreement would oblige any Canadian Borrower to make any payment of interest or other amount payable to any Credit Party in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Credit Party of βinterestβ at a βcriminal rateβ (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Credit Party of βinterestβ at a βcriminal rateβ, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows:
Β
a)Β first, by reducing the amount or rate of interest; and
Β
b)Β thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
Β
III.Β Β Β Β Β Β
Β
Β
Representations and Warranties
Β
Each Borrower represents and warrants to the Lenders that:
Β
A.Β Organization; Powers; Subsidiaries
Β
.Β Β Each of the Company and its Subsidiaries is duly organized, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing (to the extent such concept is applicable) in, every jurisdiction where such qualification is required.Β Β ScheduleΒ 3.01 hereto (as supplemented from time to time) identifies each Subsidiary, the jurisdiction of its incorporation or organization, as the case may be, the percentage of issued and outstanding shares of each class of its capital stock or other equity interests owned by the Company and the other Subsidiaries and, if such percentage is not 100% (excluding directorsβ qualifying shares as required by law), a description of each class issued and outstanding.Β Β All of the outstanding shares of capital stock and other equity interests of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares and other equity interests indicated on ScheduleΒ 3.01 as owned by the Company or another Subsidiary are owned, beneficially and of record, by the Company or any Subsidiary free and clear of all Liens.Β Β Other than in connection with employee equity incentive plans, there are no outstanding commitments or other obligations of the Company or any Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any shares of any class of capital stock or other equity interests of the Company or any Subsidiary.Β Β Each Subsidiary organized under the laws of England and Wales or incorporated in a European Union jurisdiction represents and warrants to the Lenders that its centre of main interest (as that term is used in ArticleΒ 3(1) of the Regulation) is in its jurisdiction of incorporation and it has no Establishment in any other jurisdiction.
Β
B.Β Authorization; Enforceability
Β
.Β Β The Transactions are within each Borrowerβs organizational powers and have been duly authorized by all necessary organizational action.Β Β This Agreement has been duly executed and delivered by the each Borrower party hereto and constitutes a legal, valid and binding obligation of such Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, examinership, reorganization, moratorium or other laws affecting creditorsβ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.Β Β Each Borrowing Subsidiary Agreement has been duly executed and delivered by the applicable Borrower party thereto and constitutes a legal, valid and binding obligation of such Borrower, enforceable against such Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, examinership, reorganization, moratorium or other laws affecting creditorsβ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Β
C.Β Governmental Approvals; No Conflicts
Β
.Β Β The Transactions (a)Β do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b)Β will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Company or any of its Subsidiaries or any order of any Governmental Authority, (c)Β will not violate or result in a default under any indenture, material agreement or other material instrument binding upon the Company or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Company or any of its Subsidiaries, and (d)Β will not result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries.
Β
D.Β Financial Condition; No Material Adverse Change
Β
.Β Β (m) The Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i)Β as of and for the fiscal year ended MarchΒ 31, 2012 reported on by BDO USA, LLP, independent public accountants, and (ii)Β as of and for the fiscal quarter and the portion of the fiscal year ended JuneΒ 30, 2012, certified by its chief financial officer.Β Β Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clauseΒ (ii) above.
Β
1.Β Since MarchΒ 31, 2012, there has been no material adverse change in the business, assets, operations or financial condition of the Company and its Subsidiaries, taken as a whole.
Β
E.Β Properties
Β
.Β Β (n) Each of the Company and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
Β
1.Β Each of the Company and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Company and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Β
F.Β Litigation and Environmental Matters
Β
.Β Β (o) Except as disclosed in either the most recent Form 10-K or the most recent Form 10-Q filed by the Company, as of the date hereof, there are no actions, suits, proceedings or investigations by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Borrower, threatened against or affecting the Company or any of its Subsidiaries (i)Β that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii)Β that involve this Agreement or the Transactions.Β Β Except as disclosed in either the most recent Form 10-K or the most recent Form 10-Q filed by the Company, as of the date hereof, there are no labor controversies pending against or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries (i)Β which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii)Β that involve this Agreement or the Transactions.
Β
1.Β Except as disclosed in either the most recent Form 10-K or the most recent Form 10-Q filed by the Company, as of the date hereof, and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries (i)Β has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii)Β has become subject to any Environmental Liability, (iii)Β has received notice of any claim with respect to any Environmental Liability or (iv)Β knows of any basis for any Environmental Liability.
Β
2.Β To its knowledge, neither the Company nor any Subsidiary is party or subject to any law, regulation, rule or order, or any obligation under any agreement or instrument, that has a Material Adverse Effect.
Β
G.Β Compliance with Laws and Agreements
Β
.Β Β Each of the Company and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Β
H.Β Investment Company Status
Β
.Β Β Neither the Company nor any of its Subsidiaries is an βinvestment companyβ as defined in, or subject to regulation under, the Investment Company Act of 1940.
Β
I.Β Taxes
Β
.Β Β Each of the Company and its Subsidiaries has timely filed or caused to be filed all Tax, UK Tax and Irish Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes, UK Tax and Irish Tax required to have been paid by it, except (a)Β Taxes, UK Tax and Irish Tax that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b)Β to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
Β
J.Β ERISA; Non-U.S.Β Pension Plans
Β
.
Β
1.Β No ERISA Event or Canadian Pension Plan Termination Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events and Canadian Pension Plan Termination Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.Β Β Except as could not reasonably be expected to have a Material Adverse Effect, all employer and employee payments, contributions and premiums required to be remitted, paid to or in respect of each Canadian Pension Plan have been paid or remitted in accordance with its terms and all applicable laws.Β Β No Borrower currently or has ever, sponsored, administered, maintained, contributed to or participated in a Defined Benefit Plan.
Β
2.Β Each Non-U.S.Β Pension Plan is in compliance with all requirements of law applicable thereto and the respective requirements of the governing documents for such plan except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect.Β Β With respect to each Non-U.S.Β Pension Plan, none of the Company, its Affiliates or any of their directors, officers, employees or agents has engaged in a transaction, or other act or omission (including entering into this Agreement and any act done or to be done in connection with this Agreement), that has subjected, or could reasonably be expected to subject, the Company or any of its Subsidiaries, directly or indirectly, to any penalty (including any tax or civil penalty), fine, claim or other liability (including any liability under a contribution notice or financial support direction (as those terms are defined in the Pensions Act 2004), or any liability or amount payable under section 75 or 75A of the Pensions Act 1995), that could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect and there are no facts or circumstances which may give rise to any such penalty, fine, claim, or other liability.Β Β With respect to each Non-U.S.Β Pension Plan, reserves have been established in the financial statements furnished to Lenders in respect of any unfunded liabilities in accordance with applicable law or, where required, in accordance with ordinary accounting practices in the jurisdiction in which such Non-U.S.Β Pension Plan is maintained.Β Β The aggregate unfunded liabilities, with respect to such Non-U.S.Β Pension Plans could not reasonably be expected to result in a Material Adverse Effect.
Β
K.Β Disclosure
Β
.Β Β The Company has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.Β Β Neither the Information Memorandum nor any of the other reports, financial statements, certificates or other information furnished by or on behalf of the Company or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) together with the Companyβs annual report on Form 10-K and quarterly report on Form 10-Q, in each case most recently filed by the Borrower with the SEC, taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
Β
L.Β Federal Reserve Regulations
Β
.Β Β No part of the proceeds of any Loan have been used or will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
Β
M.Β Liens
Β
.Β Β There are no Liens on any of the real or personal properties of the Company or any Subsidiary except for Liens permitted by SectionΒ 6.02.
Β
N.Β No Default
Β
.Β Β Each Borrower is in full compliance with this Agreement and no Default or Event of Default has occurred and is continuing.
Β
O.Β No Burdensome Restrictions
Β
.Β Β On the date hereof, no Borrower is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under SectionΒ 6.08.
Β
P.Β Dutch Financial Supervision Act
Β
.Β Β To the extent that any Dutch Borrower would qualify as a bank (bank) under the Dutch Financial Supervision Act, it is in compliance therewith.
Β
Q.Β Irish Companies Acts
Β
.Β Β The entry into by the Irish Borrowers of this Agreement (including, without limitation, the Cross-Guarantee at Article X of this Agreement) and the performance by the Irish Borrowers of the transactions contemplated hereby and the obligationsΒ incurred hereunder does not constitute financial assistance within the meaning of Section 60 of the Companies Act, 1963 of Ireland. The prohibition contained in Section 31 of the Companies Act, 1990 of Ireland does not apply to this Agreement (including, without limitation, the Cross-Guarantee at Article X of this Agreement) or the transactions contemplated thereby by reason of the fact that the Irish Borrowers and each other company whose liabilities are thereby guaranteed or secured are members of a group of companies consisting of a holding company and its subsidiaries within the meaning of Section 155(1) of the Companies Act, 1963 of Ireland.
Β
R.Β USA Patriot Act
Β
.Β Β (p) Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any of their respective Affiliates over which any of the foregoing exercises management control (each, a βControlled Affiliateβ) is a Prohibited Person, and the Company, its Subsidiaries and, to the knowledge of the Company, such Controlled Affiliates are in compliance with all applicable orders, rules and regulations of OFAC.
Β
1.Β Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any of their respective Controlled Affiliates:Β Β (i)Β is targeted by United States or multilateral economic or trade sanctions currently in force; (ii)Β is owned or controlled by, or acts on behalf of, any Person that is targeted by United States or multilateral economic or trade sanctions currently in force; or (iii)Β is named, identified or described on any list of Persons with whom United States Persons may not conduct business, including any such blocked persons list, designated nationals list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other such lists published or maintained by the United States, including OFAC, the United States Department of Commerce or the United States Department of State.
Β
S.Β Embargoed Persons
Β
.Β Β (a)Β None of the Companyβs or its Subsidiariesβ assets constitute property of, or are beneficially owned, directly or indirectly, by any Person targeted by economic or trade sanctions under United States law, including but not limited to, the International Emergency Economic Powers Act, 50Β U.S.C. §§ 1701 etΒ seq., The Trading with the Enemy Act, 50Β U.S.C. App. 1 etΒ seq. (the βTrading With the Enemy Actβ), any of the foreign assets control regulations of the Treasury (31 C.F.R., Subtitle B, ChapterΒ V, as amended) (the βForeign Assets Control Regulationsβ) or any enabling legislation or regulations promulgated thereunder or executive order relating thereto (which includes, without limitation, (i)Β Executive Order No.Β 13224, effective as of SeptemberΒ 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the βExecutive Orderβ) and (ii)Β the USA PATRIOT Act), if the result of such ownership would be that any Loan made by any Lender would be in violation of law (βEmbargoed Personβ); (b)Β no Embargoed Person has any interest of any nature whatsoever in any Borrower if the result of such interest would be that any Loan would be in violation of law; (c)Β no Borrower has engaged in business with Embargoed Persons if the result of such business would be that any Loan made by any Lender would be in violation of law; and (d)Β neither the Company nor any Controlled Affiliate (i)Β is or will become a βblocked personβ as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (ii)Β engages or will engage in any dealings or transactions, or be otherwise associated, with any such βblocked personβ.Β Β For purposes of determining whether or not a representation is true under this SectionΒ 3.19, the Company shall not be required to make any investigation into (i)Β the ownership of publicly traded stock or other publicly traded securities or (ii)Β the beneficial ownership of any collective investment fund.
Β
IV.Β Β Β Β Β Β
Β
Β
Conditions
Β
A.Β Effective Date
Β
.Β Β The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with SectionΒ 9.02):
Β
(i)Β The Administrative Agent (or its counsel) shall have received (i)Β from each party hereto either (A)Β a counterpart of this Agreement signed on behalf of such party or (B)Β written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii)Β duly executed copies of the Loan Documents and such other legal opinions, certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E.
Β
(ii)Β The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of each of (i)Β Xxxxxxxx Xxxxxxxxx Xxxxxxxx and Xxxxxxxx, LLP, special U.S.Β counsel for the Company, substantially in the form of Exhibit B-1, (ii)Β Xxxxxx Xxx, special Irish counsel for the initial Irish Borrowers, substantially in the form of Exhibit B-2, (iii)Β Xxxxx & XxXxxxxx, special Dutch counsel for the initial Dutch Borrower, substantially in the form of Exhibit B-3, (iv)Β Xxxxxx Xxx, special UK counsel for the initial UK Borrower, substantially in the form of Exhibit B-4 and (v)Β Xxxxxxx XxXxxxxx, special Canadian counsel for the initial Canadian Borrower, substantially in the form of Exhibit B-5, and, in each case, covering such other matters relating to the Borrowers, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request.Β Β The Company hereby requests such counsels to deliver such opinions.
Β
(iii)Β The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the initial Borrowers, the authorization of the Transactions and any other legal matters relating to such Borrowers, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E.
Β
(iv)Β The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Company, confirming compliance with the conditions set forth in paragraphsΒ (a) and (b)Β of SectionΒ 4.02.
Β
(v)Β The Administrative Agent shall have received evidence reasonably satisfactory to it that the commitments under the Existing Credit Agreement shall have been terminated and cancelled and all indebtedness thereunder shall have been fully repaid (except to the extent being so repaid with the initial Revolving Loans).
Β
(vi)Β The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced at least oneΒ (1) Business Day prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
Β
(vii)Β The Administrative Agent shall have received from the initial Dutch Borrower a confirmation by an authorized signatory of such Dutch Borrower that there is no works council or works council with jurisdiction over the transactions as envisaged by any Loan Document, or, if aΒ Β works council is established, a confirmation that all consultation obligations in respect of suchΒ Β works council have been complied with and that positive unconditional advice has been obtained, attaching a copy of such advice and a copy of the request for such advice.
Β
The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
Β
B.Β Each Credit Event
Β
.Β Β The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject to the satisfaction of the following conditions:
Β
(i)Β The representations and warranties of the Borrowers set forth in this Agreement (other than, with respect to any Loan the proceeds of which are being used to refinance maturing commercial paper issued by the Company, Sections 3.04(b) and 3.06(a)(i)) shall be true and correct in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except in the case of any representation or warranty that by its terms relates to a specified earlier date or dates, in which case such representation or warranty shall have been true and correct in all material respects (or in all respects if qualified by materiality or Material Adverse Effect) as of such earlier date or dates.
Β
(ii)Β At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
Β
(iii)Β No law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or the Issuing Bank or any Lender from issuing, renewing, extending or increasing the face amount of or participating in the Letter of Credit requested to be issued, renewed, extended or increased.
Β
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in paragraphsΒ (a) and (b)Β of this Section.
Β
C.Β Designation of a Foreign Subsidiary Borrower
Β
.Β Β The designation of a Foreign Subsidiary Borrower pursuant to SectionΒ 2.23 is subject to the condition precedent that the Company or such proposed Foreign Subsidiary Borrower shall have furnished or caused to be furnished to the Administrative Agent:
Β
(i)Β Copies, certified by the Secretary or Assistant Secretary or director of such Subsidiary, of its Board of Directorsβ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for the Administrative Agent) approving the Borrowing Subsidiary Agreement and any other Loan Documents to which such Subsidiary is becoming a party and such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of such Subsidiary;
Β
(ii)Β An incumbency certificate, executed by the Secretary or Assistant Secretary or director of such Subsidiary, which shall identify by name and title and bear the signature of the officers of such Subsidiary authorized to request Borrowings hereunder and sign the Borrowing Subsidiary Agreement and the other Loan Documents to which such Subsidiary is becoming a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Company or such Subsidiary;
Β
(iii)Β Opinions of counsel to such Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, with respect to the laws of its jurisdiction of organization and such other matters as are reasonably requested by counsel to the Administrative Agent and addressed to the Administrative Agent and the Lenders; and
Β
(iv)Β Any promissory notes requested by any Lender, and any other instruments and documents reasonably requested by the Administrative Agent.
Β
V.Β Β Β Β Β Β
Β
Β
Affirmative Covenants
Β
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Company covenants and agrees with the Lenders that:
Β
A.Β Financial Statements and Other Information
Β
.Β Β The Company will furnish to the Administrative Agent and each Lender:
Β
(i)Β within ninety (90)Β days after the end of each fiscal year of the Company, its audited consolidated balance sheet and related statements of operations, stockholdersβ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by BDO USA, LLP or other independent public accountants of recognized national standing (without a βgoing concernβ or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
Β
(ii)Β within forty-five (45)Β days after the end of each of the first three fiscal quarters of each fiscal year of the Company, its consolidated balance sheet and related statements of operations, stockholdersβ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
Β
(iii)Β concurrently with any delivery of financial statements under clauseΒ (a) or (b)Β above, a certificate of a Financial Officer of the Company (i)Β certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii)Β setting forth reasonably detailed calculations demonstrating compliance with SectionΒ 6.10 and (iii)Β stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in SectionΒ 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
Β
(iv)Β concurrently with any delivery of financial statements under clauseΒ (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
Β
(v)Β promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be;
Β
(vi)Β as soon as possible and in any event within three (3)Β Business Days of obtaining knowledge thereof:Β Β (i)Β issuance by the United Kingdom Pensions Regulator of a financial support direction or a contribution notice (as those terms are defined in the Pensions Act 2004) in relation to any Non-U.S.Β Pension Plan, (ii)Β any amount is due to any Non-U.S.Β Pension Plan pursuant to SectionΒ 75 or 75A of the Pensions Act 1995 and/or (iii)Β an amount becomes payable under section 75 or 75A of the Pensions Xxx 0000, in each case describing such matter or event and the action which the Company proposes to take with respect thereto.
Β
(vii)Β promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Β
Documents required to be delivered pursuant to clausesΒ (a), (b) and ((e) of this SectionΒ 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SECβs Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Β Β Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the compliance certificates required by clauseΒ (c) of this SectionΒ 5.01 to the Administrative Agent.
Β
B.Β Notices of Material Events
Β
.Β Β The Company will furnish to the Administrative Agent and each Lender prompt written notice of the following:
Β
(i)Β the occurrence of any Default;
Β
(ii)Β the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Company or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
Β
(iii)Β (i) the occurrence of any ERISA Event or Canadian Pension Plan Termination Event that, alone or together with any other ERISA Events and Canadian Pension Plan Termination Events that have occurred, could reasonably be expected to result in a Material Adverse Effect or (ii)Β the occurrence of any of the following to the extent the same could reasonably be expected to result in a Material Adverse Effect:Β Β (A)Β issuance by the United Kingdom Pensions Regulator of a financial support direction or a contribution notice (as those terms are defined in the Pensions Act 2004) in relation to any Non-U.S.Β Pension Plan, (B)Β any amount is due to any Non-U.S.Β Pension Plan pursuant to SectionΒ 75 or 75A of the Pensions Act 1995 and/or (C)Β an amount becomes payable under section 75 or 75A of the Pensions Xxx 0000; and
Β
(iv)Β any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Β
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Company setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Β
C.Β Existence; Conduct of Business
Β
.Β Β The Company will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights material to the conduct of the business of the Company and its Subsidiaries (taken as a whole), and maintain all requisite authority to conduct the business of the Company and its Subsidiaries (taken as a whole) in each jurisdiction in which its business is conducted; provided that the foregoing shall not prohibit any merger, consolidation, amalgamation, liquidation or dissolution permitted under SectionΒ 6.03.Β Β Each Subsidiary organized under the laws of England and Wales shall cause its registered office and centre of main interests (as that term is used in ArticleΒ 3(1) of the Regulation) to be situated solely in its jurisdiction of incorporation and shall have an Establishment situated solely in its jurisdiction of incorporation.
Β
D.Β Payment of Obligations
Β
.Β Β The Company will, and will cause each of its Subsidiaries to, pay its obligations, including Tax and UK Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a)Β the validity or amount thereof is being contested in good faith by appropriate proceedings, (b)Β the Company or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c)Β the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
Β
E.Β Maintenance of Properties; Insurance
Β
.Β Β The Company will, and will cause each of its Subsidiaries to, (a)Β keep and maintain all property material to the conduct of the business of the Company and its Subsidiaries (taken as a whole) in good working order and condition, ordinary wear and tear excepted, and (b)Β maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.
Β
F.Β Books and Records; Inspection Rights
Β
.Β Β The Company will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.Β Β The Company will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested (provided that, in respect of any such discussions with the Companyβs independent accountants, the Company shall be given notice at least two (2) Business Days prior to such discussion and the opportunity to be present at any such discussions).
Β
G.Β Compliance with Laws and Material Contractual Obligations
Β
.Β Β The Company will, and will cause each of its Subsidiaries to, (i)Β comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including without limitation Environmental Laws and, in the case of each Irish Borrower, Section 60 of the Companies Xxx 0000 of Ireland) and (ii)Β perform in all material respects its obligations under material agreements to which it is a party, in each case except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Β
H.Β Use of Proceeds
Β
.Β Β The proceeds of the Loans will be used only to repay certain existing Indebtedness, finance the working capital needs, and for general corporate purposes (including, without limitation, product and other acquisitions and related transactions), of the Company and its Subsidiaries in the ordinary course of business.Β Β No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
Β
VI.Β Β Β Β Β Β
Β
Β
Negative Covenants
Β
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all feesΒ Β payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Company covenants and agrees with the Lenders that:
Β
A.Β Subsidiary Indebtedness
Β
.Β Β The Company will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
Β
(i)Β the Obligations and any other Indebtedness created under the Loan Documents;
Β
(ii)Β Indebtedness existing on the date hereof and set forth in ScheduleΒ 6.01 and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that does not increase the outstanding principal amount thereof;
Β
(iii)Β Indebtedness of any Subsidiary to the Company or any other Subsidiary;
Β
(iv)Β Guarantees by any Subsidiary of Indebtedness of the Company or any other Subsidiary;
Β
(v)Β Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i)Β such Indebtedness is incurred prior to or within ninety (90)Β days after such acquisition or the completion of such construction or improvement and (ii)Β the aggregate principal amount of Indebtedness permitted by this clauseΒ (e) shall not exceed $300,000,000 at any time outstanding;
Β
(vi)Β Indebtedness as an account party in respect of letters of credit; and
Β
(vii)Β other Indebtedness in an aggregate principal amount not exceeding $100,000,000 at any time outstanding.
Β
B.Β Liens
Β
.Β Β The Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, except:
Β
(i)Β Permitted Encumbrances;
Β
(ii)Β any Lien on any property or asset of the Company or any Subsidiary existing on the date hereof and set forth in ScheduleΒ 6.02; provided that (i)Β such Lien shall not apply to any other property or asset of the Company or any Subsidiary and (ii)Β such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
Β
(iii)Β any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i)Β such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii)Β such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (iii)Β such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
Β
(iv)Β Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i)Β such security interests secure Indebtedness permitted by clauseΒ (e) of SectionΒ 6.01 or Indebtedness of the Company of the type described in clause (e) of Section 6.01, (ii)Β such security interests and the Indebtedness secured thereby are incurred prior to or within ninety (90)Β days after such acquisition or the completion of such construction or improvement, (iii)Β the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, (iv)Β such security interests shall not apply to any other property or assets of the Company or any Subsidiary and (v) the aggregate principal amount of the Indebtedness subject to such Liens does not at any time exceed $300,000,000;
Β
(v)Β other Liens on assets of the Company and its Subsidiaries not otherwise permitted above so long as the aggregate principal amount of the Indebtedness subject to such Liens does not at any time exceed $150,000,000.
Β
C.Β Fundamental Changes and Asset Sales
Β
.Β Β (q) The Company will not, and will not permit any Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, (including pursuant to a Sale and Leaseback Transaction), or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
Β
a)Β any Person (other than the Company) may merge into the Company or any Borrower, as applicable, in a transaction in which the Company or such Borrower, as applicable, is the surviving corporation;
Β
b)Β (A) any Subsidiary may (x) merge into a Borrower in a transaction in which the surviving entity is such Borrower (provided that any such merger involving the Company must result in the Company as the surviving entity) or (y) amalgamate with a Borrower so long as the continuing corporation resulting from such amalgamation is liable for all the obligations of such Borrower under the Loan Documents and has executed such confirmations and other documents, and takes such other actions, as the Administrative Agent may reasonably request, and (B) any Subsidiary which is not a Borrower may merge into or amalgamate with another Subsidiary which is not a Borrower;
Β
c)Β any Person may merge into or amalgamate with a Subsidiary that is not a Borrower, and any Subsidiary that is not a Borrower may merge into or amalgamate with any Person (provided that, in each case, any such merger or amalgamation must result in the surviving entity being a Subsidiary);
Β
d)Β any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Company or another Subsidiary;
Β
e)Β the Company and its Subsidiaries may (A)Β sell inventory in the ordinary course of business, (B)Β effect sales, trade-ins or dispositions of used equipment for value in the ordinary course of business consistent with past practice, and (C)Β enter into licenses of technology or intellectual property in the ordinary course of business; and
Β
f)Β any Subsidiary that is not acting as a Borrower at such time may liquidate or dissolve or be disposed of if the Company determines in good faith that such liquidation, dissolution or disposition is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Β
provided that any such merger, consolidation or amalgamation involving a Person that is not a wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation shall not be permitted unless also permitted by SectionΒ 6.04.
2.Β The Company will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Company and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
Β
3.Β The Company will not, nor will it permit any of its Subsidiaries to, change its fiscal year from the basis in effect on the Effective Date.
Β
D.Β Investments, Loans, Advances, Guarantees and Acquisitions
Β
.Β Β The Company will not, and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger, amalgamation or consolidation with any Person that was not a wholly owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any Indebtedness of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any Person or any assets of any other Person constituting a business unit, except:
Β
1.Β Permitted Investments;
Β
2.Β Permitted Acquisitions;
Β
3.Β investments by the Company existing on the date hereof in the capital stock of its Subsidiaries;
Β
4.Β investments, loans or advances made by the Company in or to any Subsidiary and made by any Subsidiary to the Company.
Β
5.Β (i) Guarantees by the Company of any Indebtedness and (ii)Β Guarantees by any Subsidiary constituting Indebtedness permitted by SectionΒ 6.01;
Β
6.Β any payment or prepayment to another Person in respect of any milestone, royalty or other similar payment due to such Person, or to terminate any such payment(s) due to such Person in the future, in each case under any agreement pursuant to which the Company has acquired rights in a pharmaceutical product; and
Β
7.Β any other investment, loan or advance (other than acquisitions) so long as the aggregate amount of all such investments, loans and advances does not exceed $300,000,000 during the term of this Agreement.
Β
E.Β Swap Agreements
Β
.Β Β The Company will not, and will not permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)Β Swap Agreements entered into to hedge or mitigate risks to which the Company or any Subsidiary has actual or anticipated exposure, and (b)Β Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Company or any Subsidiary.
Β
F.Β Transactions with Affiliates
Β
.Β Β The Company will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a)Β in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an armβs-length basis from unrelated third parties, (b)Β transactions between or among the Company and its Subsidiaries not involving any other Affiliate, (c) compensation arrangements with, and fees and expenses paid or payable to, officers, directors, employees and agents of the Company and its Subsidiaries and (d) any Restricted Payment permitted by SectionΒ 6.07.
Β
G.Β Restricted Payments
Β
.Β Β The Company will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a)Β the Company may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b)Β Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c)Β the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its Subsidiaries and (d)Β the Company and its Subsidiaries may make any other Restricted Payment (whether in cash, securities or other property) so long as no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would arise after giving effect (including proΒ forma effect) thereto.
Β
H.Β Restrictive Agreements
Β
.Β Β The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a)Β the ability of the Company or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b)Β the ability of any Subsidiary to pay dividends or other distributions with respect to holders of its Equity Interests or to make or repay loans or advances to the Company or any other Subsidiary or to Guarantee Indebtedness of the Company or any other Subsidiary; provided that (i)Β the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (ii)Β the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iii)Β clauseΒ (a) 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 and (iv)Β clauseΒ (a) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof.
Β
I.Β Subordinated Indebtedness and Amendments to Subordinated Indebtedness Documents
Β
.Β Β The Company will not, and will not permit any Subsidiary to, directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness or any Indebtedness from time to time outstanding under the Subordinated Indebtedness Documents.Β Β Furthermore, the Company will not, and will not permit any Subsidiary to, amend the Subordinated Indebtedness Documents or any document, agreement or instrument evidencing any Indebtedness incurred pursuant to the Subordinated Indebtedness Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which such Indebtedness is issued where such amendment, modification or supplement provides for the following or which has any of the following effects:
Β
(i)Β increases the overall principal amount of any such Indebtedness or increases the amount of any single scheduled installment of principal or interest;
Β
(ii)Β shortens or accelerates the date upon which any installment of principal or interest becomes due or adds any additional mandatory redemption provisions;
Β
(iii)Β shortens the final maturity date of such Indebtedness or otherwise accelerates the amortization schedule with respect to such Indebtedness;
Β
(iv)Β increases the rate of interest accruing on such Indebtedness;
Β
(v)Β provides for the payment of additional fees or increases existing fees;
Β
(vi)Β amends or modifies any financial or negative covenant (or covenant which prohibits or restricts the Company or any Subsidiary from taking certain actions) in a manner which is more onerous or more restrictive in any material respect to the Company or such Subsidiary or which is otherwise materially adverse to the Company, any Subsidiary and/or the Lenders or, in the case of any such covenant, which places material additional restrictions on the Company or such Subsidiary or which requires the Company or such Subsidiary to comply with more restrictive financial ratios or which requires the Company to better its financial performance, in each case from that set forth in the existing applicable covenants in the Subordinated Indebtedness Documents or the applicable covenants in this Agreement; or
Β
(vii)Β amends, modifies or adds any affirmative covenant in a manner which (i)Β when taken as a whole, is materially adverse to the Company, any Subsidiary and/or the Lenders or (ii)Β is more onerous than the existing applicable covenant in the Subordinated Indebtedness Documents or the applicable covenant in this Agreement.
Β
J.Β Financial Covenants
Β
.
Β
1.Β Maximum Leverage Ratio.Β Β The Company will not permit the ratio (the βLeverage Ratioβ), determined as of the end of each of its fiscal quarters ending on and after DecemberΒ 31, 2012, of (i)Β Consolidated Total Indebtedness to (ii)Β Consolidated EBITDA for the period of four (4)Β consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the Company and its Subsidiaries on a consolidated basis, to be greater than 3.25 to 1.00.
Β
2.Β Minimum Interest Coverage Ratio.Β Β The Company will not permit the ratio (the βInterest Coverage Ratioβ), determined as of the end of each of its fiscal quarters ending on and after DecemberΒ 31, 2012, of (i)Β Consolidated EBITDA to (ii)Β Consolidated Interest Expense, in each case for the period of four (4)Β consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the Company and its Subsidiaries on a consolidated basis, to be less than 3.00 to 1.00.
Β
VII.Β Β Β Β Β Β Β Β Β Β Β
Β
Β
Events of Default
Β
If any of the following events (βEvents of Defaultβ) shall occur:
Β
1.Β any Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
Β
2.Β any Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clauseΒ (a) of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5)Β Business Days;
Β
3.Β any representation or warranty made or deemed made by or on behalf of any Borrower or any Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
Β
4.Β (i) any Borrower shall fail to observe or perform any covenant, condition or agreement contained in SectionΒ 5.02, 5.03 (with respect to any Borrowerβs existence) or 5.08, in ArticleΒ VI or in ArticleΒ X or (ii)Β any Loan Document shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or the Company or any Subsidiary takes any action for the purpose of terminating, repudiating or rescinding any Loan Document or any of its obligations thereunder;
Β
5.Β any Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clauseΒ (a), (b)Β or (d)Β of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30)Β days after notice thereof from the Administrative Agent to the Company (which notice will be given at the request of any Lender);
Β
6.Β the Company or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable or within any applicable grace period;
Β
7.Β any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clauseΒ (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
Β
8.Β an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i)Β liquidation, administration, receivership, examinership, reorganization or other relief in respect of the Company or any Subsidiary or its debts, or of a substantial part of its assets, under anyΒ Β Federal, state or foreign bankruptcy, insolvency, examinership, receivership or similar law now or hereafter in effect (including, without limitation, any applicable provisions of any corporations legislation) or (ii)Β the appointment of a receiver, trustee, administrator, custodian, examiner, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60)Β days or can no longer be dismissed (xxxxxx van gewijsde) or an order or decree approving or ordering any of the foregoing shall be entered;
Β
9.Β (A) the Company or any Subsidiary shall (i)Β voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, examinership, receivership or similar law now or hereafter in effect (including, without limitation, any applicable provisions of any corporations legislation), (ii)Β consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clauseΒ (h) of this Article, (iii)Β apply for or consent to the appointment of a receiver, trustee, custodian, examiner, sequestrator, conservator or similar official for the Company or any Subsidiary or for a substantial part of its assets, (iv)Β file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v)Β make a general assignment for the benefit of creditors or (vi)Β take any action for the purpose of effecting any of the foregoing or (B)Β a UK Insolvency Event shall occur in respect of any UK Relevant Entity;
Β
10.Β the Company or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
Β
11.Β one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 or its equivalent in a foreign currency shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30)Β consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;
Β
12.Β an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
Β
13.Β a Change in Control shall occur;
Β
14.Β the occurrence of any βdefaultβ, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided;
Β
15.Β any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or the Company or any Subsidiary shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms);
Β
16.Β any of Borrowers or the Subsidiaries shall have been notified that any of them has, in relation to a Non-U.S.Β Pension Plan, incurred a debt or other liability under section 75 or 75A of the Pensions Xxx 0000, or has been issued with a contribution notice or financial support direction (as those terms are defined in the Pensions Act 2004), or otherwise is liable to pay any other amount in respect of Non-U.S.Β Pension Plans, in each case, that could reasonably be expected to result in a Material Adverse Effect; or
Β
17.Β (i) a Canadian Pension Plan Termination Event shall have occurred that, in the opinion of the Required Lenders, when taken together with other Canadian Pension Plan Termination Events that have occurred, could reasonably be expected to result in a Material Adverse Effect or (ii)Β Canadian Borrower or a Subsidiary of a Canadian Borrower shall fail to make a required contribution to or payment under any Canadian Pension Plan when due, which failure, in the opinion of the Required Lenders, when taken together with other such failures that have occurred, could reasonably be expected to result in a Material Adverse Effect;
Β
then, and in every such event (other than an event with respect to the Company described in clauseΒ (h) or (i)Β of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions, at the same or different times:Β Β (i)Β terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)Β declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrowers accrued hereunder and under the other Loan Documents, shall becomeΒ Β due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to any Borrower described in clauseΒ (h) or (i)Β of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.Β Β Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity.
Β
VIII.Β Β Β Β Β Β Β Β Β Β Β
Β
Β
The Administrative Agent
Β
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
Β
The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
Β
The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents.Β Β Without limiting the generality of the foregoing, (a)Β the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b)Β the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in SectionΒ 9.02), and (c)Β except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.Β Β The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in SectionΒ 9.02) or in the absence of its own gross negligence or willful misconduct.Β Β The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)Β any statement, warranty or representation made in or in connection with any Loan Document, (ii)Β the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii)Β the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document, (iv)Β the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v)Β the satisfaction of any condition set forth in ArticleΒ IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Β
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person.Β Β The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon.Β Β The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Β
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent.Β Β The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties.Β Β The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
Β
Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Company.Β Β Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor.Β Β If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30)Β days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, in consultation with the Company, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank.Β Β Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder.Β Β The fees payable by any Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between such Borrower and such successor.Β Β After the Administrative Agentβs resignation hereunder, the provisions of this Article and SectionΒ 9.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
Β
Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities.Β Β Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business andΒ Β has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder.Β Β Each Lender shall, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Company and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder.
Β
None of the Lenders, if any, identified in this Agreement as a Syndication Agent or Co-Documentation Agent shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such.Β Β Without limiting the foregoing, none of such Lenders shall have or be deemed to have a fiduciary relationship with any Lender.Β Β Each Lender hereby makes the same acknowledgments with respect to the relevant Lenders in their respective capacities as Syndication Agent or Co-Documentation Agents, as applicable, as it makes with respect to the Administrative Agent in the preceding paragraph.
Β
The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender.Β Β The Administrative Agent shall have the exclusive right on behalf of the Lenders to enforce the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
Β
IX.Β Β Β Β Β Β
Β
Β
Miscellaneous
Β
A.Β Notices
Β
.Β Β (r) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraphΒ (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or βpdfβ or similar email attachment, as follows:
Β
a)Β if to any Borrower, to it c/oΒ Forest Laboratories, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx X. Xxxxxx,Β Xx., Senior Vice President β Finance, Chief Financial Officer (Telecopy No.Β (000)Β 000-0000; Telephone No.Β (000)Β 000-0000);
Β
b)Β if to the Administrative Agent, (A)Β in the case of Borrowings denominated in Dollars, to JPMorgan Chase Bank, N.A., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.Β (000)Β 000-0000; Email Address: xxx.xxxxxx.xxxxxxxxx.0@xxxxxxxx.xxx), (B)Β in the case of Borrowings denominated in Foreign Currencies (other than Canadian Revolving Borrowings), to X.X.Β Xxxxxx Europe Limited, 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX, Attention of The Manager, Loan & Agency Services (Telecopy No.Β 44 207 777 2360) and (C)Β in the case of Canadian Revolving Borrowings, to JPMorgan Chase Bank, N.A., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention of Xxxx Xxxxxxx (Telecopy No.Β (000) 000-0000; Email Address: xxx.xxx.xxxxxxx@xxxxxxxx.xxx), and in each case with a copy to JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No.Β (000)Β 000-0000; Email Address: xxxxx.x.xxxxxx@xxxxxxxx.xxx);
Β
c)Β if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.Β (000)Β 000-0000; Email Address: xxx.xxxxxx.xxxxxxxxx.0@xxxxxxxx.xxx);
Β
d)Β if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention of Xxxxxxx Xxxxxxx (Telecopy No.Β (000)Β 000-0000; Email Address: xxx.xxxxxx.xxxxxxxxx.0@xxxxxxxx.xxx); and
Β
e)Β if to any other Lender, to it at its address (or telecopy number or email address) set forth in its Administrative Questionnaire.
Β
2.Β Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to ArticleΒ II unless otherwise agreed by the Administrative Agent and the applicable Lender.Β Β The Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Β
3.Β Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.Β Β All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
Β
B.Β Waivers; Amendments
Β
.Β Β (s) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other 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.Β Β The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.Β Β No waiver of any provision of this Agreement or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraphΒ (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.Β Β Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
Β
1.Β Except as provided in SectionΒ 2.20 with respect to an Incremental Term Loan Amendment, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or by the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i)Β increaseΒ Β the Commitment of any Lender without the written consent of such Lender, (ii)Β reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, (iii)Β postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv)Β change SectionΒ 2.18(b) or (c)Β in a manner that would alter the proΒ rata sharing of payments required thereby, without the written consent of each Lender, (v)Β change any of the provisions of this Section or the definition of βRequired Lendersβ or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by SectionΒ 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Revolving Loans are included on the Effective Date) or (vi)Β release the Company or any of the Borrowers from their obligations under ArticleΒ X, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to SectionΒ 2.25 shall require the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender).Β Β Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clauseΒ (i), (ii)Β or (iii)Β of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
Β
2.Β Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (x)Β to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y)Β to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
Β
3.Β If, in connection with any proposed amendment, waiver or consentΒ Β requiring the consent of βeach Lenderβ or βeach Lender directly affected thereby,β the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a βNon-Consenting Lenderβ), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i)Β another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clauseΒ (b) of SectionΒ 9.04, and (ii)Β each Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1)Β all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under SectionsΒ 2.15 and 2.17, and (2)Β an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under SectionΒ 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
Β
4.Β Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Company only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
Β
C.Β Expenses; Indemnity; Damage Waiver
Β
.Β Β (t) The Company shall pay (i)Β all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable and documented fees, charges and disbursements of one primary counsel and one local counsel in each applicable jurisdiction for the Administrative Agent, in connection with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks) of the credit facilities provided for herein, the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)Β all reasonable and documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii)Β all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender (including the reasonable and documented fees, charges and disbursements of one primary counsel and one additional local counsel in each applicable jurisdiction for the Administrative Agent and the Issuing Bank and one additional counsel for all the Lenders (other than the Administrative Agent) and additional counsel in light of actual or potential conflicts of interest or the availability of different claims of defenses) in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred duringΒ Β any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.Β Β All such expenses shall be paid promptly (and in any event not later than thirty (30)Β days) after the presentation to the Company of invoices reasonably detailing the expenses for which payment is being sought.
Β
1.Β The Company shall indemnify the Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an βIndemniteeβ) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable and documented fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i)Β the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii)Β any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii)Β any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any of its Subsidiaries, or (iv)Β any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any of its Subsidiaries, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x)Β the gross negligence or willful misconduct of such Indemnitee or (y)Β the material breach by such Indemnitee of its express contractual obligations under this Agreement pursuant to a claim initiated by the Company.Β Β This SectionΒ 9.03(b) shall not apply with respect to Taxes or UK Tax other than any Taxes or UK Tax that represent losses, claims or damages arising from any non-Tax or non-UK Tax claim.
Β
2.Β To the extent that the Company fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraphΒ (a) or (b)Β of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lenderβs Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Companyβs failure to pay any such amount shall not relieve the Company of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.
Β
3.Β To the extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnitee (i)Β for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), or (ii)Β on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
Β
4.Β All amounts due under this Section shall be payable not later than thirty (30)Β days after written demand therefor.
Β
D.Β Successors and Assigns
Β
.Β Β (u) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit and any Affiliate of any Lender that makes a Loan), except that (i)Β no Borrower may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii)Β no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.Β Β Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraphΒ (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
Β
1.Β (i) Subject to the conditions set forth in paragraphΒ (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
Β
oΒ the Company (provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10)Β Business Days after having received notice thereof); provided, further, that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee;
Β
oΒ the Administrative Agent; and
Β
oΒ the Issuing Bank.
Β
a)Β Assignments shall be subject to the following additional conditions:
Β
oΒ except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lenderβs Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Company and the Administrative Agent otherwise consent, provided that no such consent of the Company shall be required if an Event of Default has occurred and is continuing;
Β
oΒ each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenderβs rights and obligations under this Agreement, provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lenderβs rights and obligations in respect of one Class of Commitments or Loans;
Β
oΒ the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, such fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders;
Β
oΒ the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company and its affiliates and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assigneeβs compliance procedures and applicable laws, including Federal and state securities laws; and
Β
oΒ other than assignments to an existing Lender, assignments to Lenders that will acquire a position of the Obligations of a Dutch Borrower shall be at least β¬100,000 (or its equivalent in another currency) or any other amount that will from time to time be applicable under section 3(2) under a and/or b of the Dutch Decree on Definitions Wft (Besluit definitiebepalingen Wft), or, if it is less, such new Lender (as the case may be) shall confirm in writing to that Dutch Borrower that it is a professional market party within the meaning of the Dutch Financial Supervision Act.
Β
For the purposes of this SectionΒ 9.04(b), the term βApproved Fundβ has the following meaning:
Β
βApproved Fundβ means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a)Β a Lender, (b)Β an Affiliate of a Lender or (c)Β an entity or an Affiliate of an entity that administers or manages a Lender.
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Subject to acceptance and recording thereof pursuant to paragraphΒ (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lenderβs rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of SectionsΒ 2.15, 2.16, 2.17 and 9.03).Β Β Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this SectionΒ 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraphΒ (c) of this Section.
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β The Administrative Agent, acting for this purpose as an agent of each Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the βRegisterβ).Β Β The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative Agent, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.Β Β The Register shall be available for inspection by the Company, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assigneeβs completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraphΒ (b) of this Section and any written consent to such assignment required by paragraphΒ (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to SectionΒ 2.05(c), 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon.Β Β No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
Β
2.Β Any Lender may, without the consent of any Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender, sell participations to one or more banks or other entities (a βParticipantβ) in all or a portion of such Lenderβs rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A)Β such Lenderβs obligations under this Agreement shall remain unchanged; (B)Β such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C)Β the Borrowers, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenderβs rights and obligations under this Agreement.Β Β Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to SectionΒ 9.02(b) that affects such Participant.Β Β Each Borrower agrees that each Participant shall be entitled to the benefits of SectionsΒ 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under SectionΒ 2.17(f) (it being understood that the documentation required under SectionΒ 2.17(f) shall also be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraphΒ (b) of this Section; provided that such Participant (A)Β agrees to be subject to the provisions of SectionsΒ 2.18 and 2.19 as if it were an assignee under paragraphΒ (b) of this Section; and (B)Β shall not be entitled to receive any greater payment under SectionsΒ 2.15 or 2.17, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.Β Β To the extent permitted by law, each Participant also shall be entitled to the benefits of SectionΒ 9.08 as though it were a Lender, provided such Participant agrees to be subject to SectionΒ 2.18(c) as though it were a Lender.Β Β Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participantβs interest in the Loans or other obligations under the Loan Documents (the βParticipant Registerβ); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participantβs interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under SectionΒ 5f.103-1(c) of the United States Treasury Regulations.Β Β The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.Β Β For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Β
3.Β Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest with the exception of paragraphΒ (b)(ii) under clauseΒ (E) of this Section; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Β
E.Β Survival
Β
.Β Β All covenants, agreements, representations and warranties made by the Borrowers in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.Β Β The provisions of SectionsΒ 2.15, 2.16, 2.17 and 9.03 and ArticleΒ VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof.
Β
F.Β Counterparts; Integration; Effectiveness
Β
.Β Β This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.Β Β This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.Β Β Except as provided in SectionΒ 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.Β Β Delivery of an executed counterpart of a signature page of this Agreement by telecopy, e-mailed.pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.
Β
G.Β Severability
Β
.Β Β Any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Β
H.Β Right of Setoff
Β
.Β Β If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final and in whatever currency denominated) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of any Borrower against any of and all of the Obligations held by such Lender, irrespective of whether or not such Lender shall have made any demand under the Loan Documents that are then due.Β Β The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
Β
I.Β Governing Law; Jurisdiction; Consent to Service of Process
Β
. (v) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
Β
1.Β Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan, and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court.Β Β Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.Β Β Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Borrower or its properties in the courts of any jurisdiction.
Β
2.Β Each Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraphΒ (b) of this Section.Β Β Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Β
3.Β Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in SectionΒ 9.01.Β Β Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.Β Β Each Foreign Subsidiary Borrower irrevocably designates and appoints the Company, as its authorized agent, to accept and acknowledge on its behalf, service of any and all process which may be served in any suit, action or proceeding of the nature referred to in SectionΒ 9.09(b) in any federal or New York State court sitting in New York City.Β Β The Company hereby represents, warrants and confirms that the Company has agreed to accept such appointment.Β Β Said designation and appointment shall be irrevocable by each such Foreign Subsidiary Borrower until all Loans, all reimbursement obligations, interest thereon and all other amounts payable by such Foreign Subsidiary Borrower hereunder and under the other Loan Documents shall have been paid in full in accordance with the provisions hereof and thereof and such Foreign Subsidiary Borrower shall have been terminated as a Borrower hereunder pursuant to SectionΒ 2.23.Β Β Each Foreign Subsidiary Borrower hereby consents to process being served in any suit, action or proceeding of the nature referred to in SectionΒ 9.09(b) in any federal or New York State court sitting in New York City by service of process upon the Company as provided in this SectionΒ 9.09(d); provided that, to the extent lawful and possible, notice of said service upon such agent shall be mailed by registered or certified air mail, postage prepaid, return receipt requested, to the Company and (if applicable to) such Foreign Subsidiary Borrower at its address set forth in the Borrowing Subsidiary Agreement to which it is a party or to any other address of which such Foreign Subsidiary Borrower shall have given written notice to the Administrative Agent (with a copy thereof to the Company).Β Β Each Foreign Subsidiary Borrower irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service in such manner and agrees that such service shall be deemed in every respect effective service of process upon such Foreign Subsidiary Borrower in any such suit, action or proceeding and shall, to the fullest extent permitted by law, be taken and held to be valid and personal service upon and personal delivery to such Foreign Subsidiary Borrower.Β Β To the extent any Foreign Subsidiary Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of a judgment, execution or otherwise), each Foreign Subsidiary Borrower hereby irrevocably waives such immunity in respect of its obligations under the Loan Documents.Β Β Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
Β
J.Β WAIVER OF JURY TRIAL
Β
.Β Β EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).Β Β EACH PARTY HERETO (A)Β CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)Β ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Β
K.Β Headings
Β
.Β Β Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Β
L.Β Confidentiality
Β
.Β Β Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a)Β to its and its Affiliatesβ directors, officers, employees and agents, including accountants, legal counsel and other advisors who have a need to know the Information in connection with the credit facility hereunder (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b)Β to the extent requested by any regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)Β to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d)Β to any other party to this Agreement, (e)Β in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)Β subject to an agreement containing provisions substantially the same as those of this Section, to (i)Β any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement (provided that, so long as no Event of Default has occurred and is continuing, such prospective assignee is approved by the Company) or (ii)Β any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and its obligations, (g)Β with the prior written consent of the Company or (h)Β to the extent such Information (i)Β becomes publicly available other than as a result of a breach of this Section or (ii)Β becomes available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other than the Company or any of its Subsidiaries.Β Β For the purposes of this Section, βInformationβ means all information received from the Company or any of its representatives relating to the Company or its Subsidiaries or their business, other than any such information that is (x) available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Company or any of its representatives or (y) is clearly identified at the time of its delivery as not being confidential.Β Β Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Β
M.Β Material Non-Public Information
Β
.
Β
1.Β EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTIONΒ 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY ANDΒ Β ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
Β
2.Β ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.Β Β ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
Β
N.Β USA PATRIOT Act; AML Legislation
Β
.
Β
1.Β Each Lender that is subject to the requirements of the USA PATRIOT Act (TitleΒ III of Pub. L. 107-56 (signed into law OctoberΒ 26, 2001)) (the βActβ) hereby notifies each Borrower that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with the Act.
Β
2.Β Each Canadian Borrower acknowledges that, pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)Β and other applicable anti-money laundering, anti-terrorist financing, government sanction and βknow your clientβ Laws, whether within Canada or elsewhere (collectively, including any guidelines or orders thereunder, βAML Legislationβ), the Lenders and the Administrative Agent may be required to obtain, verify and record information regarding such Canadian Borrower, its directors, authorized signing officers, direct or indirect shareholders or other Persons in control of such Canadian Borrower, and the transactions contemplated hereby.Β Β Each Canadian Borrower shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or the Administrative Agent, or any prospective assign or participant of a Lender or the Administrative Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.
Β
If the Administrative Agent has ascertained the identity of any Canadian Borrower or any authorized signatories of any Canadian Borrower for the purposes of applicable AML Legislation, then the Administrative Agent:
Β
a)Β shall be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a βwritten agreementβ in such regard between each Lender and the Administrative Agent within the meaning of applicable AML Legislation; and
Β
b)Β shall provide to each Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.
Β
Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that the Administrative Agent has no obligation to ascertain the identity of any Canadian Borrower or any authorized signatories of any Canadian Borrower on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any Canadian Borrower or any such authorized signatory in doing so.
Β
O.Β Interest Rate Limitation
Β
.Β Β Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the βChargesβ), shall exceed the maximum lawful rate (the βMaximum Rateβ) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
Β
P.Β No Advisory or Fiduciary Responsibility
Β
.Β Β In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees that:Β Β (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are armβs-length commercial transactions between such Borrower and its Affiliates, on the one hand, and the Lenders and their Affiliates, on the other hand, (B)Β such Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)Β such Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A)Β each of the Lenders and their Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other Person and (B)Β no Lender or any of its Affiliates has any obligation to such Borrower or any of its Affiliates with respect to the transactions contemplated hereby except, in the case of a Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii)Β each of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower and its Affiliates, and no Lender or any of its Affiliates has any obligation to disclose any of such interests to such Borrower or its Affiliates.Β Β Each Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Borrower, in connection with such transaction or the process leading thereto.
Β
Q.Β Attorney Representation
Β
.Β Β If a Dutch Borrower is represented by an attorney in connection with the signing and/or execution of the Agreement and/or any other Loan Document it is hereby expressly acknowledged and accepted by the parties to the Agreement and/or any other Loan Document that the existence and extent of the attorneyβs authority and the effects of the attorneyβs exercise or purported exercise of his or her authority shall be governed by the laws of the Netherlands.
Β
X.Β Β Β Β Β Β
Β
Β
Cross-Guarantee
Β
In order to induce the Lenders to extend credit to the other Borrowers hereunder, but subject to the last sentence of this ArticleΒ X, each Borrower hereby absolutely and irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Obligations of such other Borrowers.Β Β Each Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Obligation.Β Β Each Borrower absolutely and irrevocably and unconditionally jointly and severally agrees that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify the Administrative Agent, the Issuing Bank and the Lenders immediately on demand against any cost, loss or liability they incur as a result of any Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under this ArticleΒ X on the date when it would have been due (but so that the amount payable by a Borrower under this indemnity will not exceed the amount it would have had to pay under this ArticleΒ X if the amount claimed had been recoverable on the basis of a guarantee).
Β
Each Borrower waives presentment to, demand of payment from and protest to any Borrower of any of the Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment.Β Β The obligations of each Borrower hereunder shall not be affected by (a)Β the failure of the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any right or remedy against any Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b)Β any extension or renewal of any of the Obligations; (c)Β any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, or any other Loan Document or agreement; (d)Β any default, failure or delay, willful or otherwise, in the performance of any of the Obligations; (e)Β the failure of the Administrative Agent to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f)Β any change in the corporate, partnership or other existence, structure or ownership of any Borrower or any other guarantor of any of the Obligations; (g)Β the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Borrower or any other guarantor of any of the Obligations, for any reason related to this Agreement, any Swap Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise affecting any term of any of the Obligations; or (h)Β any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Borrower to subrogation.
Β
Each Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, the Issuing Bank or any Lender to any balance of any deposit account or credit on the books of the Administrative Agent, the Issuing Bank or any Lender in favor of any Borrower or any other Person.
Β
The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the Obligations or otherwise.
Β
Each Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by the Administrative Agent, the Issuing Bank or any Lender upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise (including pursuant to any settlement entered by a holder of Obligations in its discretion).
Β
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, the Issuing Bank or any Lender may have at law or in equity against any Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Borrower hereby promises to and will, upon receipt of written demand by the Administrative Agent, the Issuing Bank or any Lender, forthwith pay, or cause to be paid, to the Administrative Agent, the Issuing Bank or any Lender in cash an amount equal to the unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.Β Β Each Borrower further agrees that if payment in respect of any Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Applicable Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of the Administrative Agent, the Issuing Bank or any Lender, disadvantageous to the Administrative Agent, the Issuing Bank or any Lender in any material respect, then, at the election of the Administrative Agent, such Borrower shall make payment of such Obligation in Dollars (based upon the applicable Equivalent Amount in effect on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent and, as a separate and independent obligation, shall indemnify the Administrative Agent, the Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.
Β
Upon payment by any Borrower of any sums as provided above, all rights of such Borrower against any Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations owed by such Borrower to the Administrative Agent, the Issuing Bank and the Lenders.
Β
Nothing shall discharge or satisfy the liability of any Borrower hereunder except the full performance and payment in cash of the Obligations.
Β
Notwithstanding anything contained in this ArticleΒ X to the contrary, no Foreign Subsidiary Borrower which is and remains an Affected Foreign Subsidiary shall be liable hereunder for any of the Loans made to, or any other Obligation incurred solely by or on behalf of, the Company.
Β
[Signature Pages Follow]
Β
Β
Β
Β
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
Β
FOREST LABORATORIES, INC.,
Β
as the Company
Β
By:Β Β /s/ Xxxxxx XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxx Xxxxxxx
Β
Title: Chairman, Chief Executive Officer and President
Β
By:Β Β /s/ Xxxxxxx X. Xxxxxx, Xx.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx X. Xxxxxx, Xx.
Β
Title: Executive Vice President β Finance and Administration and Chief Financial Officer
Β
Present when the Common Seal of
Β
FOREST LABORATORIES HOLDINGS LIMITED,
Β
as an Irish Borrower, was affixed hereto and this Agreement was delivered
Β
By:Β Β /s/ Xxxxxxx X. Xxxxxx, Xx.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx X. Xxxxxx, Xx.
Β
Title: Director/Secretary
Β
By:Β Β /s/ Xxxxx XxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxxxxxx
Β
Title: Director/Assistant Secretary
Β
Present when the Common Seal of
Β
FOREST LABORATORIES IRELAND LIMITED
Β
as an Irish Borrower, was affixed hereto and this Agreement was delivered
Β
By:Β Β /s/ Xxxxxxx XxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx Xxxxxxxx
Β
Title: Director
Β
By:Β Β /s/ Xxxxxxxx XxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxxx Xxxxx
Β
Title: Director/ Secretary
Β
FOREST FINANCE B.V.,
Β
as a Dutch Borrower
Β
By:Β Β /s/ Xxxxxxxx XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxxx Xxxxxxx
Β
Title: Managing director A
Β
By:Β Β /s/ Xxxxxxxx XxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxxx Xxxxx
Β
Title: Managing director B
Β
Executed and delivered as a Deed on behalf of
Β
FOREST LABORATORIES UK LIMITED,
Β
as a UK Borrower
Β
By:Β Β /s/ Xxxxxxx XxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx Xxxxxxxx
Β
Title: Director
Β
By:Β Β /s/ Xxxxxxxx XxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxxx Xxxxx
Β
Title: Director
Β
FOREST LABORATORIES CANADA INC.,
Β
as a Canadian Borrower
Β
By:Β Β /s/ Xxxxxxx X. Xxxxxx, Xx.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx X. Xxxxxx, Xx.
Β
Title: Vice President β Chief Financial Officer
Β
By:Β Β /s/ Xxxxx XxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxxxxxx
Β
Title: Secretary
Β
JPMORGAN CHASE BANK, N.A., individually as a Lender, as Swingline Lender, as Issuing Bank and as Administrative Agent
Β
By:Β Β /s/ Xxxxx X. XxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx X. Xxxxxx
Β
Title: Vice President
Β
Jurisdiction of tax residence:Β Β USA
Β
DTTP Scheme number:Β Β 013/M/0268710/DTTP
Β
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Lender
Β
By:Β Β /s/ Xxxxxxx X. XxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx X. Xxx
Β
Title: Senior Vice President
Β
FIFTH THIRD BANK, individually as a Lender and as Syndication Agent
Β
By:Β Β /s/ Xxxxx X. XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx X. Xxxxxxx
Β
Title: Assistant Vice President
Β
Jurisdiction of tax residence:Β Β USA
Β
DTTP Scheme number:Β Β 13/F/24267/DTTP
Β
BANK OF AMERICA, N.A., individually as a Lender and as a Co-Documentation Agent
Β
By:Β Β /s/ Xxxxxx XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxx Xxxxxxx
Β
Title: Vice President
Β
Jurisdiction of tax residence:Β Β USA
Β
DTTP Scheme number:Β Β 13/B/7418/DTTP
Β
CREDIT SUISSE AG, CAYMAN ISLANDSΒ Β BRANCH, individually as a Lender and as a Co-Documentation Agent
Β
By:Β Β /s/ Xxx XxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxx Xxxxxx
Β
Title: Vice President
Β
By:Β Β /s/ Xxxxx XxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxxxxxx
Β
Title: Associate
Β
Jurisdiction of tax residence:Β Β Switzerland
Β
DTTP Scheme number:Β Β ________________
Β
XXXXXX XXXXXXX BANK, N.A., as a Lender
Β
By:Β Β /s/ Xxxxx XxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxx
Β
Title: Authorized Signatory
Β
Jurisdiction of tax residence:Β Β United States of America
Β
DTTP Scheme number:Β Β 13/M/307216/DTTP
Β
XXXXXX STANLEYSENIOR FUNDING, INC., as a Co-Documentation Agent
Β
By:Β Β /s/ Xxxxx XxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxx
Β
Title: Vice President
Β
U.S. BANK NATIONAL ASSOCIATION, individually as a Lender and as a Co-Documentation Agent
Β
By:Β Β /s/ Xxxxxxxx XxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxxx Xxxxx
Β
Title: Vice President
Β
Jurisdiction of tax residence:Β Β United States
Β
DTTP Scheme number:Β Β 13/U/62184/DTTP
Β
U.S. BANK NATIONAL ASSOCIATION CANADA BRANCH, as a Lender
Β
By:Β Β /s/ Xxxxxx XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxx Xxxxxxx
Β
Title: Principal Officer
Β
Jurisdiction of tax residence:Β Β Canada
Β
DTTP Scheme number:Β Β _________________
Β
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, individually as a Lender and as a Co-Documentation Agent
Β
By:Β Β /s/ Xxxxx XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxx Xxxxxxx
Β
Title: Authorized Signatory
Β
By:Β Β /s/ Xxxxxxx XxxxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxxx Xxxxxxxxx
Β
Title: Authorized Signatory
Β
Jurisdiction of tax residence:Β Β Ireland
Β
DTTP Scheme number:Β Β 12/G/57971/DTTP
Β
THE NORTHERN TRUST COMPANY, as a Lender
Β
By:Β Β /s/ Xxxxxx X. XxxxxxxΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β
Β
Name: Xxxxxx X. Xxxxxxx
Β
Title: Senior Vice President
Β
Jurisdiction of tax residence:Β Β USA
Β
DTTP Scheme number:Β Β 013/N/60122/DTTP
Β
Β
SCHEDULE 2.02
Β
MANDATORY COST
Β
1.
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The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of compliance with (a)Β the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions) or (b)Β the requirements of the European Central Bank.
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Β
2.
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On the first day of each Interest Period (or as soon as possible thereafter) the Administrative Agent shall calculate, as a percentage rate, a rate (the βAssociated Costs Rateβ) for each Lender, in accordance with the paragraphs set out below.Β Β The Mandatory Cost will be calculated by the Administrative Agent as a weighted average of the Lendersβ Associated Costs Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum.
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Β
3.
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The Associated Costs Rate for any Lender lending from a Facility Office in a Participating Member State will be the percentage notified by that Lender to the Administrative Agent.Β Β This percentage will be certified by that Lender in its notice to the Administrative Agent to be its reasonable determination of the cost (expressed as a percentage of that Lenderβs participation in all Loans made from that Facility Office) of complying with the minimum reserve requirements of the European Central Bank in respect of loans made from that Facility Office.
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Β
4.
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The Associated Costs Rate for any Lender lending from a Facility Office in the United Kingdom will be calculated by the Administrative Agent as follows:
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Β
Β
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(a)
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in relation to a Loan in Pounds Sterling:
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Β
[Missing Graphic Reference] per cent. per annum
Β
Β
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(b)
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in relation to a Loan in any currency other than Pounds Sterling:
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Β
[Missing Graphic Reference] per cent. per annum.
Β
Where:
Β
Β
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A
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is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
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Β
Β
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B
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is the percentage rate of interest (excluding the Applicable Rate and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of interest specified in SectionΒ 2.13(e)) payable for the relevant Interest Period on the Loan.
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Β
Β
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C
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is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England.
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Β
Β
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D
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is the percentage rate per annum payable by the Bank of England to the Administrative Agent on interest bearing Special Deposits.
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Β
Β
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E
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is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated by the Administrative Agent as being the average of the most recent rates of charge supplied by the Reference Banks to the Administrative Agent pursuant to paragraphΒ 7 below and expressed in pounds per Β£1,000,000.
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Β
5.
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For the purposes of this Schedule:
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Β
Β
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(a)
|
βEligible Liabilitiesβ and βSpecial Depositsβ have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England.
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Β
Β
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(b)
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βFacility Officeβ means the office or offices notified by a Lender to the Administrative Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Daysβ written notice) as the office or offices through which it will perform its obligations under this Agreement.
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Β
Β
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(c)
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βFees Rulesβ means the rules on periodic fees contained in the Financial Services Authority Fees Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits.
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Β
Β
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(d)
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βFee Tariffsβ means the fee tariffs specified in the Fees Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but taking into account any applicable discount rate).
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Β
Β
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(e)
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βParticipating Member Stateβ means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
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Β
Β
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(f)
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βReference Banksβ means, in relation to Mandatory Cost, the principal London offices of JPMorgan Chase Bank, N.A.
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Β
Β
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(g)
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βTariff Baseβ has the meaning given to it in, and will be calculated in accordance with, the Fees Rules.
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Β
Β
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(h)
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βUnpaid Sumβ means any sum due and payable but unpaid by any Borrower under the Loan Documents.
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Β
6.
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In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5 per cent.Β Β will be included in the formula as 5 and not as 0.05).Β Β A negative result obtained by subtracting D from B shall be taken as zero.Β Β The resulting figures shall be rounded to four decimal places.
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Β
7.
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If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable after publication by the Financial Services Authority, supply to the Administrative Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by that Reference Bank as being the average of the Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in pounds per Β£1,000,000 of the Tariff Base of that Reference Bank.
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Β
8.
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Each Lender shall supply any information required by the Administrative Agent for the purpose of calculating its Associated Costs Rate.Β Β In particular, but without limitation, each Lender shall supply the following information on or prior to the date on which it becomes a Lender:
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Β
Β
|
(a)
|
the jurisdiction of its Facility Office; and
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Β
Β
|
(b)
|
any other information that the Administrative Agent may reasonably require for such purpose.
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Β
Each Lender shall promptly notify the Administrative Agent of any change to the information provided by it pursuant to this paragraph.
Β
9.
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The percentages of each Lender for the purpose of A and C above and the rates of charge of each Reference Bank for the purpose of E above shall be determined by the Administrative Agent based upon the information supplied to it pursuant to paragraphsΒ 7 and 8 above and on the assumption that, unless a Lender notifies the Administrative Agent to the contrary, each Lenderβs obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its Facility Office.
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Β
10.
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The Administrative Agent shall have no liability to any person if such determination results in an Associated Costs Rate which over or under compensates any Lender and shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant to paragraphsΒ 3, 7 and 8 above is true and correct in all respects.
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Β
11.
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The Administrative Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Associated Costs Rate for each Lender based on the information provided by each Lender and each Reference Bank pursuant to paragraphsΒ 3, 7 and 8 above.
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Β
12.
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Any determination by the Administrative Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Associated Costs Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties hereto.
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Β
13.
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The Administrative Agent may from time to time, after consultation with the Company and the relevant Lenders, determine and notify to all parties hereto any amendments which are required to be made to this ScheduleΒ 2.02 in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties hereto.
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Β
Β