EXHIBIT 10.1
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CREDIT AGREEMENT
among
DHM HOLDING COMPANY, INC.,
ββββ HOLDING COMPANY, LLC,
ββββ FOOD COMPANY, INC.,
SOLVEST, LTD.,
VARIOUS LENDING INSTITUTIONS,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent and as Deposit Bank,
BANC OF AMERICA SECURITIES LLC,
as Syndication Agent,
and
THE BANK OF NOVA SCOTIA
and
RABOBANK INTERNATIONAL,
as Co-Documentation Agents
Dated as of March 28, 2003,
Amended and Restated as of April 18, 2005
and further Amended and Restated as of April 12, 2006
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DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
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Section 1. Amount and Terms of Credit ................................... 1
1.01 Commitments .................................................... 1
1.02 Minimum Borrowing Amounts, etc ................................. 4
1.03 Notice of Borrowing ............................................ 4
1.04 Disbursement of Funds .......................................... 5
1.05 Notes .......................................................... 6
1.06 Conversions .................................................... 7
1.07 Pro Rata Borrowings ............................................ 8
1.08 Interest ....................................................... 8
1.09 Interest Periods ............................................... 9
1.10 Increased Costs; Illegality; etc ............................... 10
1.11 Compensation ................................................... 13
1.12 Change of Lending Office ....................................... 14
1.13 Replacement of Lenders ......................................... 15
1.14 Special Provisions Applicable to Lenders Upon the Occurrence
of a Sharing Event .......................................... 16
1.15 Incremental Term Loan Commitments .............................. 19
Section 2................................................................ 22
Section 2A. Letters of Credit ........................................ 22
2A.01 Letters of Credit ........................................... 22
2A.02 Minimum Stated Amount ....................................... 24
2A.03 Letter of Credit Requests ................................... 25
2A.04 Letter of Credit Participations ............................. 25
2A.05 Agreement to Repay Letter of Credit Drawings ................ 28
2A.06 Increased Costs ............................................. 29
Section 2B. Bank Guaranties .......................................... 30
2B.01 Bank Guaranties ............................................. 30
2B.02 Minimum Face Amount ......................................... 32
2B.03 Bank Guaranty Requests ...................................... 32
2B.04 Bank Guaranty Participations ................................ 33
2B.05 Agreement to Repay Bank Guaranty Payments ................... 35
2B.06 Increased Costs ............................................. 37
2B.07 Cash Collateralization ...................................... 38
Section 2C. Special Provisions ....................................... 38
2C.01 Credit-Linked Deposit Account ............................... 38
2C.02 European Monetary Union ..................................... 40
2C.03 Special Provisions Regarding Non-Dollar Denominated Letters
of Credit and Non-Dollar Denominated Bank Guaranties ..... 40
2C.04 Special Provisions Regarding Return Of Credit-Linked
Deposits ................................................. 41
(i)
Table of Contents
(continued)
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Section 3. Fees; Commitments ............................................ 42
3.01 Fees ........................................................... 42
3.02 Voluntary Termination or Reduction of Commitments and
Adjustments of Commitments .................................. 45
3.03 Mandatory Reduction of Commitments ............................. 46
Section 4. Prepayments; Repayments; Taxes ............................... 48
4.01 Voluntary Prepayments .......................................... 48
4.02 Mandatory Repayments and Commitment Reductions ................. 49
4.03 Method and Place of Payment .................................... 58
4.04 Net Payments ................................................... 58
Section 5. Conditions Precedent to Credit Events on the
Restatement Effective Date ................................ 60
5.01 Execution of Agreement; Notes .................................. 60
5.02 Officer's Certificate .......................................... 60
5.03 Opinions of Counsel ............................................ 61
5.04 Company Documents; Proceedings ................................. 61
5.05 Adverse Change, etc ............................................ 62
5.06 Litigation ..................................................... 62
5.07 Approvals ...................................................... 62
5.08 Refinancing; Original Credit Agreement; etc .................... 62
5.09 Outstanding Indebtedness and Preferred Equity .................. 64
5.10 U.S. Subsidiaries Guaranty; Intercompany Subordination Agreement
Acknowledgement ............................................. 64
5.11 U.S. Security Documents ........................................ 65
5.12 Foreign Security Document Acknowledgements and Amendments ...... 66
5.13 Shareholders' Agreements; Management Agreements; Existing
Indebtedness Agreements; and Tax Allocation Agreements ...... 67
5.14 Solvency Certificate ........................................... 68
5.15 Financial Statements; Pro Forma Financial Statements;
Projections ................................................. 69
5.16 Payment of Fees ................................................ 69
5.17 Consent Letter ................................................. 69
5.18 Intercreditor Agreement ........................................ 69
Section 6. Conditions Precedent to All Credit Events .................... 69
6.01 No Default; Representations and Warranties ..................... 70
6.02 Notice of Borrowing; Letter of Credit Request; etc ............. 70
6.03 Incremental Term Loans ......................................... 70
Section 7. Representations and Warranties ............................... 70
7.01 Company Status ................................................. 71
7.02 Company Power and Authority .................................... 71
7.03 No Violation ................................................... 71
7.04 Litigation ..................................................... 72
(ii)
Table of Contents
(continued)
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7.05 Use of Proceeds; Margin Regulations ............................ 72
7.06 Governmental Approvals ......................................... 73
7.07 Investment Company Act ......................................... 73
7.08 Public Utility Holding Company Act ............................. 73
7.09 True and Complete Disclosure ................................... 73
7.10 Financial Condition; Financial Statements ...................... 74
7.11 Security Interests ............................................. 75
7.12 Compliance with ERISA .......................................... 75
7.13 Capitalization ................................................. 77
7.14 Subsidiaries ................................................... 78
7.15 Intellectual Property, etc ..................................... 78
7.16 Compliance with Statutes; Agreements, etc ...................... 78
7.17 Environmental Matters .......................................... 78
7.18 Properties ..................................................... 79
7.19 Labor Relations ................................................ 80
7.20 Tax Returns and Payments ....................................... 80
7.21 Scheduled Existing Indebtedness ................................ 80
7.22 Insurance ...................................................... 81
7.23 Transaction .................................................... 81
7.24 Special Purpose Corporations ................................... 81
7.25 Subordination .................................................. 82
Section 8. Affirmative Covenants ........................................ 83
8.01 Information Covenants .......................................... 83
8.02 Books, Records and Inspections ................................. 88
8.03 Insurance ...................................................... 88
8.04 Payment of Taxes ............................................... 89
8.05 Existence; Franchises .......................................... 89
8.06 Compliance with Statutes; etc .................................. 90
8.07 Compliance with Environmental Laws ............................. 90
8.08 ERISA .......................................................... 91
8.09 Good Repair .................................................... 92
8.10 End of Fiscal Years; Fiscal Quarters ........................... 92
8.11 Additional Security; Additional Guaranties; Actions with Respect
to Non-Guarantor Subsidiaries; Further Assurances ........... 92
8.12 Foreign Subsidiaries Security .................................. 98
8.13 Use of Proceeds ................................................ 100
8.14 Ownership of Subsidiaries ...................................... 100
8.15 Permitted Acquisitions ......................................... 100
8.16 Maintenance of Company Separateness ............................ 102
8.17 Performance of Obligations ..................................... 102
8.18 Conduct of Business ............................................ 102
8.19 Margin Stock ................................................... 104
8.20 Foreign Security Document Amendments ........................... 104
8.21 Refinancing .................................................... 105
(iii)
Table of Contents
(continued)
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Section 9. Negative Covenants ........................................... 105
9.01 Changes in Business; etc ....................................... 105
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc ......... 109
9.03 Liens .......................................................... 113
9.04 Indebtedness ................................................... 117
9.05 Advances; Investments; Loans ................................... 122
9.06 Restricted Payments; etc ....................................... 127
9.07 Transactions with Affiliates ................................... 132
9.08 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Issuances of Capital
Stock; etc .................................................. 132
9.09 Limitation on Issuance of Equity Interests ..................... 133
9.10 Limitation on Certain Restrictions on Subsidiaries ............. 134
9.11 Limitation on the Creation of Subsidiaries and Joint Ventures .. 135
9.12 Special Restrictions Relating to Principal Property ............ 136
Section 10. Events of Default ........................................... 137
10.01 Payments ....................................................... 137
10.02 Representations, etc ........................................... 137
10.03 Covenants ...................................................... 137
10.04 Default Under Other Agreements ................................. 138
10.05 Bankruptcy, etc ................................................ 138
10.06 ERISA .......................................................... 138
10.07 Security Documents ............................................. 139
10.08 Guaranties ..................................................... 139
10.09 Judgments ...................................................... 140
10.10 Ownership ...................................................... 140
10.11 Denial of Liability ............................................ 140
10.12 Governmental Action ............................................ 140
10.13 Special Defaults Relating to Bermuda Entities .................. 141
Section 11. Definitions ................................................. 142
Section 12. The Agents .................................................. 202
12.01 Appointment .................................................... 202
12.02 Nature of Duties ............................................... 203
12.03 Certain Rights of the Agents ................................... 204
12.04 Reliance by Agents ............................................. 204
12.05 Notice of Default, etc ......................................... 204
12.06 Nonreliance on Agents and Other Lenders ........................ 205
12.07 Indemnification ................................................ 205
12.08 Agents in their Individual Capacities .......................... 206
12.09 Holders ........................................................ 206
12.10 Resignation of the Agents ...................................... 206
(iv)
Table of Contents
(continued)
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12.11 Collateral Matters ............................................. 207
12.12 Delivery of Information ........................................ 208
12.13 Special Appointment of Collateral Agent (Germany) .............. 209
12.14 Special Provisions Relating to Canadian Security Documents ..... 209
12.15 Special Appointment of Collateral Agent (Italy) ................ 210
12.16 Continuing Indemnities for Original Agents ..................... 211
Section 13. Miscellaneous ............................................... 211
13.01 Payment of Expenses, etc ....................................... 211
13.02 Right of Setoff ................................................ 213
13.03 Notices ........................................................ 214
13.04 Benefit of Agreement ........................................... 214
13.05 No Waiver; Remedies Cumulative ................................. 217
13.06 Payments Pro Rata .............................................. 217
13.07 Calculations; Computations ..................................... 218
13.08 Governing Law; Submission to Jurisdiction; Venue ............... 218
13.09 Counterparts ................................................... 219
13.10 Effectiveness .................................................. 219
13.11 Headings Descriptive ........................................... 220
13.12 Amendment or Waiver; etc ....................................... 220
13.13 Survival ....................................................... 223
13.14 Domicile of Loans and Commitments .............................. 223
13.15 Confidentiality ................................................ 224
13.16 Waiver of Jury Trial ........................................... 225
13.17 Register ....................................................... 225
13.18 English Language ............................................... 226
13.19 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in Qualified
Jurisdictions ............................................... 226
13.20 Powers of Attorney; etc ........................................ 227
13.21 Waiver of Sovereign Immunity ................................... 228
13.22 Judgment Currency .............................................. 228
13.23 Special Acknowledgments ........................................ 229
13.24 Special Provisions Relating to Amendment and Restatement ....... 229
13.25 USA Patriot Act ................................................ 230
13.26 Other Liens on Collateral; Terms of Intercreditor
Agreement; Etc .............................................. 230
13.27 Post-Closing Actions ........................................... 231
Section 14. Credit Agreement Party Guaranty ............................. 232
14.01 The Guaranty ................................................... 232
14.02 Bankruptcy ..................................................... 233
14.03 Nature of Liability ............................................ 233
14.04 Independent Obligation ......................................... 233
14.05 Authorization .................................................. 233
14.06 Reliance ....................................................... 234
14.07 Subordination .................................................. 234
(v)
Table of Contents
(continued)
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14.08 Waiver ......................................................... 235
14.09 Payments ....................................................... 237
(vi)
Table of Contents
(continued)
Schedule I - List of Lenders and Commitments
Schedule II - Lender Addresses
Schedule III - Real Properties
Schedule IV - Scheduled Existing Indebtedness
Schedule V - Pension Plans
Schedule VI - Existing Investments
Schedule VII - Subsidiaries
Schedule VIII - Insurance
Schedule IX - Existing Liens
Schedule X - Capitalization
Schedule XI - Existing Letters of Credit
Schedule XII - Certain Foreign Security Documents, Foreign Subsidiaries
Party to Foreign Security Documents, etc.
Schedule XIII - Non-Guarantor Subsidiaries; Excluded Foreign Subsidiaries
Schedule XIV - Transactions with Affiliates
Schedule XV - Principal Properties
Schedule XVI - Tax Matters
Schedule XVII - Initial Qualified Jurisdictions
Schedule XVIII - Post-Closing Matters
(vii)
Table of Contents
(continued)
Exhibit A-1 - Form of Notice of Borrowing
Exhibit A-2 - Form of Notice of Conversion/Continuation
Exhibit B-1 - Form of Tranche B Term Note
Exhibit B-2 - Form of Tranche C Term Note
Exhibit B-3 - Form of Incremental Term Note
Exhibit C-1 - Form of Letter of Credit Request
Exhibit C-2 - Form of Bank Guaranty Request
Exhibit D - Form of Section 4.04(b)(ii) Certificate
Exhibit E-1 - Form of Opinion of Paul, Hastings, ββββββββ & ββββββ LLP
Exhibit E-2 - Form of Opinion of βββββββ, ββββββββ ββββββ
Exhibit F - Form of Officers' Certificate
Exhibit G-1 - Form of U.S. Subsidiaries Guaranty
Exhibit G-2 - Form of Foreign Subsidiaries Guaranty Acknowledgment
Exhibit G-3 - Form of Foreign Subsidiaries Guaranty
Exhibit H-1 - Form of U.S. Pledge Agreement
Exhibit H-2 - Form of U.S. Security Agreement
Exhibit I - Form of Solvency Certificate
Exhibit J - Form of Assignment and Assumption Agreement
Exhibit K - Form of Intercompany Note
Exhibit L - Form of Shareholder Subordinated Note
Exhibit M - Form of Special Colombian Put Note
Exhibit N - Form of Consent Letter
Exhibit O-1 - Form of Intercompany Subordination Acknowledgment
Exhibit O-2 - Form of Intercompany Subordination Agreement
Exhibit P - Form of Incremental Term Loan Commitment Agreement
Exhibit Q - Form of Intercreditor Agreement
(viii)
CREDIT AGREEMENT, dated as of March 28, 2003, amended and restated as
of April 18, 2005 and further amended and restated as of April 12, 2006, among
DHM HOLDING COMPANY, INC., a Delaware corporation ("Holdings"), ββββ HOLDING
COMPANY, LLC, a Delaware limited liability company ("Intermediate Holdco"), ββββ
FOOD COMPANY, INC., a Delaware corporation (the "U.S. Borrower"), SOLVEST, LTD.,
a company organized under the laws of Bermuda (the "Bermuda Borrower" and,
together with the U.S. Borrower, the "Borrowers"), the Lenders from time to time
party hereto, DEUTSCHE BANK AG NEW YORK BRANCH, as Deposit Bank (in such
capacity, the "Deposit Bank"), DEUTSCHE BANK AG NEW YORK BRANCH, as
Administrative Agent (in such capacity, the "Administrative Agent"), BANC OF
AMERICA SECURITIES LLC, as Syndication Agent (in such capacity, the "Syndication
Agent"), THE BANK OF NOVA SCOTIA and RABOBANK INTERNATIONAL, as Co-Documentation
Agents (in such capacity, each, a "Co-Documentation Agent" and, collectively,
the "Co-Documentation Agents") and DEUTSCHE BANK SECURITIES INC., as Lead
Arranger and Sole Book Runner (in such capacity, the "Lead Arranger"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 11 are used herein as so defined.
WITNESSETH:
WHEREAS, Holdings, Intermediate Holdco, the Borrowers, the Original
Lenders, Deutsche Bank AG New York Branch, as Administrative Agent, Banc of
America Securities LLC and The Bank of Nova Scotia, as Co-Syndication Agents,
Fortis Capital Corporation, ββββββ Trust and Savings Bank and Rabobank
International, as Co-Documentation Agents and Deutsche Bank Securities Inc.,
Banc of America Securities LLC and The Bank of Nova Scotia, as Joint Lead
Arrangers, are party to a Credit Agreement, dated as of March 28, 2003 and
amended and restated as of April 18, 2005 (as the same has been further amended,
restated, modified and/or supplemented to, but not including, the Restatement
Effective Date, the "Original Credit Agreement");
WHEREAS, the parties hereto wish to amend and restate the Original
Credit Agreement in the form of this Agreement; and
NOW, THEREFORE, the parties hereto agree that, effective as of the
Restatement Effective Date, the Original Credit Agreement shall be, and hereby
is, amended and restated in its entirety as follows:
Section 1. Amount and Terms of Credit.
1.01 Commitments. (a) Tranche B Term Loans. Subject to and upon the
terms and conditions set forth herein, each Lender with a Tranche B Term Loan
Commitment severally agrees to make a term loan (each, a "Tranche B Term Loan"
and, collectively, the "Tranche B Term Loans") to the U.S. Borrower, which
Tranche B Term Loans:
(i) shall be incurred by the U.S. Borrower pursuant to a single
drawing on the Restatement Effective Date for the purposes described in
Section 7.05(a);
(ii) shall be denominated in Dollars;
(iii) except as hereafter provided, shall, at the option of the U.S.
Borrower, be incurred and maintained as one or more Borrowings of Base Rate
Loans or Eurodollar Loans; provided (A) except as otherwise specifically
provided in Section 1.10(b), all Tranche B Term Loans made as part of the
same Borrowing shall at all times consist of Tranche B Term Loans of the
same Type and (B) unless the Administrative Agent has determined that the
Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), no more than four Borrowings of Tranche B Term Loans
to be maintained as Eurodollar Loans may be incurred prior to the 30th day
after the Restatement Effective Date (or, if later, the last day of the
Interest Period applicable to the fourth Borrowing of Eurodollar Loans
referred to below), each of which Borrowings of Eurodollar Loans may only
have an Interest Period of one week, and the first of which Borrowings may
be made no earlier than the third Business Day, and no later than the fifth
Business Day, after the Restatement Effective Date, the second of which
Borrowings may only be made on the last day of the Interest Period of the
first such Borrowing, the third of which Borrowings may only be made on the
last day of the Interest Period of the second such Borrowing and the fourth
of which Borrowings may only be made on the last day of the Interest Period
of the third such Borrowing; and
(iv) shall be made by each Lender in that initial aggregate principal
amount as is equal to the Tranche B Term Loan Commitment of such Lender on
the Restatement Effective Date (before giving effect to the termination
thereof on such date pursuant to Section 3.03(b)).
Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(b) Tranche C Term Loans. Subject to and upon the terms and conditions
set forth herein, (I) each Consenting Tranche C Term Loan Lender severally
agrees that, on the Restatement Effective Date, the Original Tranche B Term Loan
made by such Consenting Tranche C Term Loan Lender to the Bermuda Borrower
pursuant to the Original Credit Agreement and outstanding on the Restatement
Effective Date (immediately prior to giving effect thereto) shall convert (the
"Term Loan Conversion") into a new term loan to the Bermuda Borrower (each such
term loan, a "Converted Tranche C Term Loan"); provided that if the aggregate
principal amount of the Original Tranche B Term Loan made by the respective
Consenting Tranche C Term Loan Lender to the Bermuda Borrower pursuant to the
Original Credit Agreement and outstanding on the Restatement Effective Date
(immediately prior to giving effect thereto) exceeds the amount set forth
opposite the name of such Lender on Schedule I hereto under the heading
"Converted Tranche C Term Loans," the amount of such Consenting Tranche C Term
Loan Lender's Converted Tranche C Term Loan shall equal the amount so set forth
for such Lender on Schedule I and the outstanding principal amount of such
Lender's outstanding Original Tranche B Term Loan in excess thereof shall be
repaid on the Restatement Effective Date (together with interest, breakage costs
and any other amounts owing with respect thereto as provided below), and (II)
each Lender with a Tranche C Term Loan Commitment severally agrees to make, on
the Restatement Effective Date, a term loan or term loans to the Bermuda
Borrower (each, an "Additional Tranche C Term Loan" and, collectively, the
"Additional Tranche C Term Loans", and, together with the Converted Tranche B
Term Loans, each, a "Tranche C Term Loan" and, collectively, the "Tranche C Term
Loans"), which Tranche C Term Loans:
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(i) shall, in the case of Additional Tranche C Term Loans, be incurred
by the Bermuda Borrower pursuant to a single drawing on the Restatement
Effective Date for the purposes described in Section 7.05(a);
(ii) shall be denominated in Dollars;
(iii) except as hereinafter provided, shall, at the option of the
Bermuda Borrower, be incurred and maintained as, and/or converted into one
or more Borrowings of Base Rate Loans or Eurodollar Loans, provided that
(A) except as otherwise specifically provided in Section 1.10(b), all
Tranche C Term Loans made as part of the same Borrowing shall at all times
consist of Tranche C Term Loans of the same Type and (B) unless the
Administrative Agent has determined that the Syndication Date has occurred
(at which time this clause (B) shall no longer be applicable), no more than
four Borrowings of Tranche C Term Loans to be maintained as Eurodollar
Loans may be incurred prior to the 30th day after the Restatement Effective
Date (or, if later, the last day of the Interest Period applicable to the
fourth Borrowing of Eurodollar Loans referred to below), each of which
Borrowings of Eurodollar Loans may only have an Interest Period of one
week, and the first of which Borrowings may be made no earlier than the
third Business Day, and no later than the fifth Business Day, after the
Restatement Effective Date, the second of which Borrowings may only be made
on the last day of the Interest Period of the first such Borrowing, the
third of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing and the fourth of which Borrowings may
only be made on the last day of the Interest Period of the third such
Borrowing; and
(iv) shall not exceed for any Lender, in initial principal amount,
that amount which equals the sum of (x) the aggregate principal amount of
its Converted Tranche C Term Loan (if any) made as provided in clause
(b)(I) above (and as set forth opposite its name on Schedule I hereto under
the heading "Converted Tranche C Term Loans") plus (y) the Tranche C Term
Loan Commitment of such Lender (if any) as in effect on the Restatement
Effective Date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(c)).
In connection with the Term Loan Conversion and the incurrence of Additional
Tranche C Term Loans pursuant to this Section 1.01(b), (i) the Interest Period
applicable to each Borrowing of Original Tranche B Term Loans, subject to
conversion pursuant to this Section 1.01(b), existing on the Restatement
Effective Date (immediately prior to the Term Loan Conversion) and maintained as
Eurodollar Loans under the Original Credit Agreement shall, simultaneously with
the occurrence of the Term Loan Conversion, be broken, (ii) the Administrative
Agent shall (and is hereby authorized to) take all appropriate actions to ensure
that all Lenders with outstanding Tranche C Term Loans (after giving effect to
the Term Loan Conversion and the incurrence of Additional Tranche C Term Loans
pursuant to this Section 1.01(b)) participate in each new Borrowing of Tranche C
Term Loans on a pro rata basis (based upon their respective Tranche C Term Loan
Borrowing Amounts as in effect on the Restatement Effective Date) and (iii) the
Bermuda Borrower shall be obligated to pay to the respective Original Lenders
breakage and/or other costs of the type referred to in Section 1.11 of the
Original Credit Agreement (if any) incurred in connection with the Term Loan
Conversion and/or the actions taken pursuant to
-3-
preceding clause (ii) of this Section 1.01(b). Once repaid, Tranche C Term Loans
may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein,
each Lender with an Incremental Term Loan Commitment for a given Tranche of
Incremental Term Loans severally agrees, at any time and from time to time on
and after the date that such Incremental Term Loan Commitment is obtained
pursuant to Section 1.15 and prior to the Incremental Term Loan Commitment
Termination Date for such Tranche of Incremental Term Loans, to make a term loan
(each, an "Incremental Term Loan" and, collectively, the "Incremental Term
Loans") to the Incremental Term Loan Borrower for such Tranche, which
Incremental Term Loans:
(i) shall be incurred on an Incremental Term Loan Borrowing Date for
the purposes described in Section 7.05(a);
(ii) shall be denominated in Dollars;
(iii) except as hereinafter provided, shall, at the option of the
Incremental Term Loan Borrower for such Tranche, be incurred and maintained
as, and/or converted into one or more Borrowings of Base Rate Loans or
Eurodollar Loans, provided that except as otherwise specifically provided
in Section 1.10(b), all Incremental Term Loans of a given Tranche made as
part of the same Borrowing shall at all times consist of Incremental Term
Loans of the same Type; and
(iv) shall not exceed for any such Incremental Term Loan Lender at any
time of any incurrence thereof, the Incremental Term Loan Commitment of
such Incremental Term Loan Lender for such Tranche at such time (before
giving effect to any reductions thereto on such date pursuant to Section
3.03(e)).
Once repaid, Incremental Term Loans may not be reborrowed.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable to Borrowings of the respective Type and Tranche of Loans to be made
or maintained pursuant to the respective Borrowing. More than one Borrowing may
be incurred on any day, but at no time shall there be outstanding more than 35
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. Whenever a Borrower desires to make a
Borrowing of Loans hereunder, an Authorized Officer of such Borrower shall give
the Administrative Agent at its Notice Office at least one Business Day's prior
written (or telephonic notice promptly confirmed in writing) notice of each Base
Rate Loan and at least three Business Days' prior written (or telephonic notice
promptly confirmed in writing) notice of each Eurodollar Loan to be made
hereunder, provided that any such notice shall be deemed to have been given on a
certain day only if given before 2:00 P.M. (New York time) on such day. Each
such written notice or written confirmation of telephonic notice (each, a
"Notice of Borrowing"), except as otherwise expressly provided in Section 1.10,
shall be irrevocable and shall be given by or on behalf of the respective
Borrower in the form of Exhibit A-1, appropriately completed to specify: (i) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing,
(ii) the date of such Borrowing (which shall be a Business Day), (iii) whether
the respective Borrowing
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shall consist of Tranche B Term Loans, Tranche C Term Loans, U.S. Borrower
Incremental Term Loans or Bermuda Borrower Incremental Term Loans and (iv)
whether the Loans being made pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans. The Administrative Agent
shall promptly give each Lender which is required to make Loans of the Tranche
specified in the respective Notice of Borrowing notice of such proposed
Borrowing, of such Lender's proportionate share thereof (determined in
accordance with Section 1.07) and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
1.04 Disbursement of Funds. Not later than 1:00 P.M. (New York time)
on the date specified in each Notice of Borrowing, each Lender with a Commitment
under the respective Tranche, will make available its pro rata portion
(determined in accordance with Section 1.07) of each such Borrowing requested to
be made on such date (or, in the case of Additional Tranche C Term Loans, each
Lender with a Tranche C Term Loan Commitment will make available an amount
thereof equal to its Tranche C Term Loan Commitment on the Restatement Effective
Date (prior to the termination thereof pursuant to Section 3.03(c) on such
date)). All such amounts shall be made available in Dollars and in immediately
available funds at the Payment Office of the Administrative Agent, and the
Administrative Agent will make available to the respective Borrower the Payment
Office or such other location as may be reasonably satisfactory to the
Administrative Agent and specified in the relevant Notice of Borrowing the
aggregate of the amounts so made available by the Lenders prior to 3:00 P.M.
(New York time) on such day to the extent of funds actually received by the
Administrative Agent prior to such time on such day. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of Borrowing that
such Lender does not intend to make available to the Administrative Agent such
Lender's portion of any Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the relevant Borrower to pay immediately such corresponding amount to the
Administrative Agent and such Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the U.S. Borrower or the
Bermuda Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the respective Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, the overnight Federal Funds
Rate and (ii) if recovered from the respective Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section 1.08.
Nothing in this Section 1.04 shall be deemed to relieve any Lender from its
obligation to make Loans hereunder or to prejudice any rights which the relevant
Borrower may have against any Lender as a result of any failure by such Lender
to make Loans hereunder.
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1.05 Notes. (a) Subject to the provisions of Section 1.05(f), the U.S.
Borrower's (in the case of Tranche B Term Loans and U.S. Borrower Incremental
Term Loans) and the Bermuda Borrower's (in the case of Tranche C Term Loans and
Bermuda Borrower Incremental Term Loans) obligation to pay the principal of, and
interest on, the Loans made by each Lender shall be evidenced (i) in the case of
Tranche B Term Loans, by a promissory note duly executed and delivered by the
U.S. Borrower substantially in the form of Exhibit B-1, with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (ii) in the case of Tranche C
Term Loans, by a promissory note duly executed and delivered by the Bermuda
Borrower substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (each, a "Tranche C Term Note" and,
collectively, the "Tranche C Term Notes") and (iii) in the case of Incremental
Term Loans, by a promissory note duly executed and delivered by the applicable
Incremental Term Loan Borrower for such Tranche substantially in the form of
Exhibit B-3, with blanks appropriately completed in conformity herewith (each,
an "Incremental Term Note" and, collectively, the "Incremental Term Notes").
(b) The Tranche B Term Note issued to each Lender with a Tranche B
Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed
by the U.S. Borrower, (ii) be payable to such Lender (or an affiliate designated
by such Lender) or its registered assigns and be dated the Restatement Effective
Date (or, in the case of any Tranche B Term Note issued after the Restatement
Effective Date, the date of issuance thereof), (iii) be in a stated principal
amount (expressed in Dollars) equal to the Tranche B Term Loan Commitment of
such Lender on the Restatement Effective Date before giving effect to any
reductions thereto on such date (or, in the case of any Tranche B Term Note
issued after the Restatement Effective Date, in a stated principal amount
(expressed in Dollars) equal to the outstanding principal amount of the Tranche
B Term Loan of such Lender on the date of the issuance thereof) and be payable
(in Dollars) in the principal amount of the Tranche B Term Loan evidenced
thereby from time to time, (iv) mature on the Tranche B/C Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clauses of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary repayment as provided in Section
4.01 and mandatory repayment as provided in Section 4.02 and (vii) be entitled
to the benefits of this Agreement and the other Credit Documents.
(c) The Tranche C Term Note issued to each Lender with a Tranche C
Term Loan Commitment or outstanding Tranche C Term Loans shall (i) be executed
by the Bermuda Borrower, (ii) be payable to such Lender (or an affiliate
designated by such Lender) or its registered assigns and be dated the
Restatement Effective Date (or, in the case of any Tranche C Term Note issued
after the Restatement Effective Date, the date of issuance thereof), (iii) be in
a stated principal amount (expressed in Dollars) equal to the sum of the Tranche
C Term Loan Commitment of such Lender on the Restatement Effective Date (before
giving effect to any reductions thereto on such date) plus the aggregate
principal amount of the Converted Tranche B Term Loan (if any) of such Lender on
the Restatement Effective Date (or, in the case of any Tranche C Term Note
issued after the Restatement Effective Date, in a stated principal amount
(expressed in Dollars) equal to the outstanding principal amount of the Tranche
C Term Loan of such Lender on the date of the issuance thereof) and be payable
(in Dollars) in the principal amount of the Tranche C Term Loan evidenced
thereby from time to time, (iv) mature on the Tranche B/C Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of
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Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Incremental Term Note issued to each Lender with an
Incremental Term Loan Commitment or outstanding Incremental Term Loans under a
given Tranche shall (i) be executed by the Incremental Term Loan Borrower for
such Tranche, (ii) be payable to such Lender (or an affiliate designated by such
Lender) or its registered assigns and be dated the date of issuance thereof,
(iii) be in a stated principal amount (expressed in Dollars) equal to the
Incremental Term Loan Commitment of such Lender on the effective date of the
respective Incremental Term Loan Commitment Agreement (prior to the incurrence
of any Incremental Term Loans pursuant thereto on such date) (or, if issued
thereafter, be in a stated principal amount (expressed in Dollars) equal to the
sum of the then remaining amount of the Incremental Term Loan Commitment of such
Lender plus the outstanding principal amount of the Incremental Term Loans of
such Lender on the date of issuance thereof) and be payable (in Dollars) in the
principal amount of the Incremental Term Loans evidenced thereby from time to
time, (iv) mature on the respective Incremental Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vi) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in any such notation or endorsement shall not affect either
Borrower's obligations in respect of any Loans.
(f) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Lenders that at
any time specifically request the delivery of such Notes. No failure of any
Lender to request or obtain a Note evidencing its Loans to either Borrower shall
affect or in any manner impair the obligations of the respective Borrower to pay
the Loans (and all related Obligations) which would otherwise be evidenced
thereby in accordance with the requirements of this Agreement, and shall not in
any way affect the security or guaranties therefor provided pursuant to the
various Credit Documents. Any Lender that does not have a Note evidencing its
outstanding Loans shall in no event be required to make the notations or
endorsements otherwise described in preceding clause (e). At any time when any
Lender requests the delivery of a Note to evidence any of its Loans, the
relevant Borrower shall promptly execute and deliver to the respective Lender
the requested Note or Notes in the appropriate amount or amounts to evidence
such Loans.
1.06 Conversions. Each Borrower shall have the option to convert, on
any Business Day occurring after the Restatement Effective Date, all or a
portion equal to at least the applicable Minimum Borrowing Amount (and, if
greater, in an integral multiple of $500,000) of the outstanding principal
amount of Loans made to such Borrower pursuant to one or more Borrowings of one
or more Types of Loans under a single Tranche into a Borrowing or
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Borrowings of another Type of Loan under such Tranche, provided that (i) except
as otherwise provided in Section 1.10(b) or unless the respective Borrower pays
all amounts owing pursuant to Section 1.11 concurrently with any such
conversion, Eurodollar Loans may be converted into Base Rate Loans only on the
last day of an Interest Period applicable to the Eurodollar Loans being
converted and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the applicable Minimum Borrowing Amount applicable
thereto, (ii) unless the Required Lenders otherwise agree, Base Rate Loans may
only be converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of conversion, (iii) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 30th day after the
Restatement Effective Date, conversions of Base Rate Loans into Eurodollar Loans
may only be made if any such conversion is effective on the first day of the
first, second, third or fourth Interest Period referred to in clause (B) of the
provisos appearing in each of Section 1.01(a)(iii) and Section 1.01(b)(iii) and
so long as any such conversion does not result in a greater number of Borrowings
of Eurodollar Loans prior to the 30th day after the Restatement Effective Date
as are permitted under Section 1.01(a)(iii) and Section 1.01(b)(iii), and (iv)
no conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such
conversion shall be effected by the applicable Borrower by giving the
Administrative Agent at its Notice Office prior to 2:00 P.M. (New York time) at
least three Business Days' prior notice (each, a "Notice of
Conversion/Continuation") in the form of Exhibit A-2, appropriately completed to
specify the Loans of such Borrower to be so converted, the Borrowing or
Borrowings pursuant to which such Loans were made and, if to be converted into
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Tranche B Term Loans,
Tranche C Term Loans and Incremental Term Loans of a given Tranche under this
Agreement shall be incurred from the Lenders pro rata on the basis of such
Lenders' Tranche B Term Loan Commitments, Tranche C Term Loan Borrowing Amounts
or Incremental Term Loan Commitments of the applicable given Tranche, as the
case may be. It is understood that no Lender shall be responsible for any
default by any other Lender of its obligation to make Loans hereunder and that
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
1.08 Interest. (a) The U.S. Borrower hereby agrees to pay (in the case
of Tranche B Term Loans and U.S. Borrower Incremental Term Loans, in each case
maintained as Base Rate Loans) and the Bermuda Borrower hereby agrees to pay (in
the case of Tranche C Term Loans and Bermuda Borrower Incremental Term Loans, in
each case maintained as Base Rate Loans) interest in respect of the unpaid
principal amount of each Base Rate Loan made to it from the date of the
Borrowing thereof until the earlier of (i) the maturity (whether by acceleration
or otherwise) of such Base Rate Loan and (ii) the conversion of such Base Rate
Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate per annum which
shall be equal to the sum of the Base Rate in effect from time to time during
the period such Base Rate Loan is outstanding plus the relevant Applicable
Margin as in effect from time to time.
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(b) The U.S. Borrower hereby agrees to pay (in the case of Tranche B
Term Loans and U.S. Borrower Incremental Term Loans, in each case maintained as
Eurodollar Loans) and the Bermuda Borrower hereby agrees to pay (in the case of
Tranche C Term Loans and Bermuda Borrower Incremental Term Loans, in each case
maintained as Eurodollar Loans), interest in respect of the unpaid principal
amount of each Eurodollar Loan made to it from the date of the Borrowing thereof
until the earlier of (i) the maturity (whether by acceleration or otherwise) of
such Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to a Base
Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as applicable, at a rate per
annum which shall, during each Interest Period applicable thereto, be equal to
the sum of the Eurodollar Rate for such Interest Period plus the relevant
Applicable Margin as in effect from time to time.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans
maintained pursuant to the respective Tranche (or, if the overdue amount owing
does not relate to any specific Tranche, the rate otherwise applicable to
Tranche B Term Loans which are maintained as Base Rate Loans) from time to time
and (y) the rate which is 2% in excess of the rate then borne by such Loans, in
each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the respective Borrower and the
respective Lenders thereof. Each such determination shall, absent manifest
error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time a Borrower gives any Notice of
Borrowing or Notice of Conversion/Continuation in respect of the making of, or
conversion into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of an
Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the respective Borrower shall have the right to
elect, by having an Authorized Officer of such Borrower give the Administrative
Agent notice thereof, the interest period applicable to such Eurodollar Loan,
which Interest Period shall, at the option of such Borrower (but otherwise
subject to (x) clause (B) of the proviso appearing in Section 1.01(a)(iii), (y)
clause (B) of the proviso appearing in Section 1.01(b)(iii) and (z) clause (iii)
of the proviso appearing in Section 1.06) be, in the case of a Eurodollar Loan,
a one, two, three or six-month period or, to the extent agreed to by all Lenders
required to make Loans under the respective Tranche, a nine or twelve-month
period (or, if required by clause (B) of the proviso appearing in either Section
1.01(a)(iii) or Section 1.01(b)(iii), a one-week period); provided that:
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(i) all Eurodollar Loans comprising the same Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Borrowing of Base Rate Loans) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for a Eurodollar Loan would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(v) no Interest Period in respect of any Borrowing under a given
Tranche of Loans shall be selected which extends beyond the respective
Maturity Date for such Tranche of Loans;
(vi) unless the Required Lenders otherwise agree, no Interest Period
for a Eurodollar Loan may be selected at any time when a Default or Event
of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of any Tranche of
Term Loans shall be elected which extends beyond any date upon which a
Scheduled Repayment for the respective Tranche of Term Loans will be
required to be made under Section 4.02(b) if, after giving effect to the
election of such Interest Period, the aggregate principal amount of such
Tranche of Term Loans which have Interest Periods which will expire after
such date will be in excess of the aggregate principal amount of such
Tranche of Term Loans then outstanding less the aggregate amount of such
required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the U.S. Borrower or the Bermuda Borrower, as applicable, has
failed to elect, or is not permitted to elect, a new Interest Period to be
applicable to such Eurodollar Loans as provided above, the relevant Borrower
shall be deemed to have elected to convert such Eurodollar Loans into Base Rate
Loans, in any such case effective as of the expiration date of such current
Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that any
Lender shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by the Administrative Agent):
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(i) on any Interest Determination Date that, by reason of any changes
arising after the Restatement Effective Date affecting the applicable
interbank market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of the
Eurodollar Rate; or
(ii) at any time that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Restatement
Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in
the interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order, guideline or
request, such as, for example, but not limited to (A) a change in the basis
of taxation of payments to a Lender of the principal of or interest on the
Loans or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or net
profits of such Lender imposed by the jurisdiction in which its principal
office or applicable lending office is located) or (B) a change in official
reserve requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the Eurodollar
Rate and/or (y) other circumstances arising since the Restatement Effective
Date affecting such Lender, the interbank market or the position of such
Lender in such market (whether or not such Lender was a Lender at the time
of such occurrence); or
(iii) at any time after the Restatement Effective Date, that the
making or continuance of any Eurodollar Loan has been made unlawful by any
law or governmental rule, regulation or order (or would conflict with any
governmental rule, regulation, guideline, request or order not having the
force of law but with which such Lender customarily complies even though
the failure to comply therewith would not be unlawful), or impracticable as
a result of a contingency occurring after the Restatement Effective Date
which materially and adversely affects the applicable interbank market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the affected Borrower, and, except in the case of clause (i) above,
to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies Holdings, any
affected Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any Notice of Borrowing
or Notice of Conversion/Continuation given by either Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by such Borrower, (y) in the case of
clause (ii) above, the respective Borrower or Borrowers, as the case may be,
agrees to pay to such Lender, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts received or receivable hereunder (with the
written notice as to the additional amounts owed to such Lender, submitted to
the respective Borrower or Borrowers by such Lender in accordance with the
foregoing to be, absent manifest error, final and conclusive and binding on
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all the parties hereto, although the failure to give any such notice shall not
release or diminish any of the respective Borrower's or Borrowers' obligations
to pay additional amounts pursuant to this Section 1.10(a) upon the subsequent
submission of such notice) and (z) in the case of clause (iii) above, the
respective Borrower or Borrowers shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law. Each of the Administrative Agent and each Lender agrees
that if it gives notice to either Borrower of any of the events described in
clause (i), (ii) or (iii) above, it shall promptly notify such Borrower and, in
the case of any such Lender, the Administrative Agent, if such event ceases to
exist.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the affected Borrower
may (and, in the case of a Eurodollar Loan affected by the circumstances
described in Section 1.10(a)(iii), shall) either (x) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, cancel the
respective Borrowing by giving the Administrative Agent telephonic notice
(confirmed in writing) on the same date that such Borrower was notified by the
affected Lender or the Administrative Agent pursuant to Section 1.10(a)(ii) or
(iii), as the case may be, or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days' written notice to the
Administrative Agent, require the affected Lender to convert such Eurodollar
Loan into a Base Rate Loan (which conversion, in the case of the circumstance
described in Section 1.10(a)(iii), shall occur no later than the last day of the
Interest Period then applicable to such Eurodollar Loan or such earlier day as
shall be required by applicable law).
(c) If any Lender shall have determined after the Restatement
Effective Date that the adoption or effectiveness after the Restatement
Effective Date of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change after the Restatement Effective
Date in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or any Person controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's or such other controlling Person's capital or assets as a consequence
of such Lender's Commitment or Commitments hereunder or its obligations
hereunder to a level below that which such Lender or such other controlling
Person could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or such other controlling
Person's policies with respect to capital adequacy), then from time to time,
upon written demand by such Lender (with a copy to the Administrative Agent),
accompanied by the notice referred to in the next succeeding sentence of this
Section 1.10(c), the Borrowers jointly and severally agree to pay to such Lender
such additional amount or amounts as will compensate such Lender or such other
controlling Person for such reduction in the rate of return to such Lender or
such other controlling Person. Each Lender, upon determining in good faith that
any additional amounts will be payable pursuant to this Section 1.10(c), will
give prompt written notice thereof to the relevant Borrower (a copy of which
shall be sent by such Lender to the Administrative Agent), which notice shall
set forth such Lender's basis for asserting its rights under this Section
1.10(c) and the calculation, in reasonable detail, of such additional amounts
claimed hereunder, although the failure to give any such notice shall not
release or diminish either Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the
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subsequent receipt of such notice. A Lender's good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto.
(d) In the event that any Lender shall in good faith determine (which
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) at any time that such Lender is required to maintain
reserves (including, without limitation, any marginal, emergency, supplemental,
special or other reserves required by applicable law) which have been
established by any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body with jurisdiction over
such Lender (including any branch, Affiliate or funding office thereof) in
respect of any Non-Dollar Denominated Letter of Credit, any Non-Dollar
Denominated Bank Guaranties or any category of liabilities which includes
deposits by reference to which the interest rate on any Non-Dollar Denominated
Letter of Credit or any Non-Dollar Denominated Bank Guaranty is determined or
any category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to non-United States residents, then,
unless such reserves are included in the calculation of the interest rate
applicable to such Non-Dollar Denominated Letter of Credit or such Non-Dollar
Denominated Bank Guaranty or in Section 1.10(a)(ii), such Lender shall promptly
notify Holdings and the Borrowers in writing specifying the additional amounts
required to indemnify such Lender against the cost of maintaining such reserves
(such written notice to provide in reasonable detail a computation of such
additional amounts) and the Borrowers jointly and severally agree to pay to such
Lender such specified amounts as additional fees at the time that either
Borrower is otherwise required to pay regularly accruing fees in respect of such
Non-Dollar Denominated Letter of Credit or such Non-Dollar Denominated Bank
Guaranty or, if later, on written demand therefor by such Lender.
1.11 Compensation. (a) The Borrowers jointly and severally agree to
compensate each Lender, upon its written request (which request shall set forth
in reasonable detail the basis for requesting such compensation), for all
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Eurodollar Loans but
excluding any loss of anticipated profit) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender or any Agent) a Borrowing
of, or conversion from or into, Eurodollar Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
(whether or not withdrawn by the respective Borrower or Borrowers or deemed
withdrawn pursuant to Section 1.10(a)); (ii) if any repayment (including any
repayment made pursuant to Section 4.01 or 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10 or as a result of the
replacement of a Lender pursuant to Section 1.13, 4.01 or 13.12(b)), conversion
or permitted "realignment" of any of its Eurodollar Loans occurs on a date which
is not the last day of an Interest Period applicable thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in a
notice of prepayment given by the respective Borrower or Borrowers; or (iv) as a
consequence of (x) any other default by the respective Borrower to repay its
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 1.10(b). Each Lender's
calculation of the amount of compensation owing pursuant to this Section 1.11(a)
shall be made in good faith. A Lender's basis for requesting compensation
pursuant to this Section 1.11(a) and
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a Lender's calculation of the amount thereof, shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
(b) The Borrowers jointly and severally agree to compensate the
Deposit Bank and each CL Lender, upon the Deposit Bank's or applicable CL
Lender's written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities incurred by the Deposit Bank or such CL Lender in connection with:
(i) any withdrawals from the Credit-Linked Deposit Account pursuant to the terms
of this Agreement prior to the end of the applicable Interest Period or
Scheduled Investment Termination Date for the Credit-Linked Deposits; and (ii)
the termination of the Total Credit-Linked Commitment (and the related
termination of the investment of the funds held in the Credit-Linked Deposit
Account) prior to the end of any applicable Interest Period or Scheduled
Investment Termination Date for the Credit-Linked Deposits; provided, however,
that neither of the Borrowers shall have any obligation to compensate the
Deposit Bank or any CL Lender pursuant to this Section 1.11(b) for any losses,
expenses and liabilities in connection with periods after such Interest Period
or Scheduled Investment Termination Date, as the case may be.
1.12 Change of Lending Office. (a) Each Lender may at any time or from
time to time designate, by written notice to the Administrative Agent to the
extent not already reflected on Schedule II, one or more lending offices (which,
for this purpose, may include Affiliates of the respective Lender) for the
various Loans made, and Letters of Credit and Bank Guaranties participated in,
by such Lender (including, without limitation, by designating a separate lending
office (or Affiliate) to act as such with respect to Dollar Denominated Letter
of Credit Outstandings and Dollar Denominated Bank Guaranty Outstandings versus
Non-Dollar Denominated Letter of Credit Outstandings and Non-Dollar Denominated
Bank Guaranty Outstandings); provided that, for designations made after the
Restatement Effective Date (unless such designation is made after the occurrence
of a Sharing Event as a result of any Lender's purchase of participating
interests in Loans, Letters of Credit, Unpaid Drawings, Unreimbursed Payments
and Credit-Linked Deposits pursuant to Section 1.14), to the extent such
designation shall result in increased costs under Section 1.10, 2A.06, 2B.06 or
4.04 in excess of those which would be charged in the absence of the designation
of a different lending office (including a different Affiliate of the respective
Lender), then the Borrowers shall not be obligated to pay such excess increased
costs (although if such designation results in increased costs, the Borrowers
shall be obligated to pay the costs which would have applied in the absence of
such designation and any subsequent increased costs of the type described above
resulting from changes after the date of the respective designation). Except as
provided in the immediately preceding sentence, such lending office and
Affiliate of any Lender designated as provided above shall, for all purposes of
this Agreement, be treated in the same manner as the respective Lender (and
shall be entitled to all indemnities and similar provisions in respect of its
acting as such hereunder).
(b) Each Lender agrees that upon the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c), Section
2A.06, Section 2B.06 or Section 4.04 with respect to such Lender, it will, if
requested by the applicable Borrower by notice to such Lender, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans, Letters of Credit and/or Bank Guaranties,
as the case may be, affected by such event, provided that such designation is
made
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on such terms that such Lender and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any of the aforementioned Sections.
Nothing in this Section 1.12 shall affect or postpone any of the obligations of
either Borrower or the rights of any Lender provided in Sections 1.10, 2A.06,
2B.06 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting
Lender, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c) or (d), Section 2A.06, Section
2B.06 or Section 4.04 with respect to any Lender which results in such Lender
charging to either Borrower increased costs materially in excess of the average
costs being charged by the other Lenders in respect of such contingency or (z)
in the case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been approved
by the Required Lenders as provided in Section 13.12(b), the U.S. Borrower or
the Bermuda Borrower, as the case may be, shall have the right, in accordance
with the requirements of Section 13.04(b), if no Event of Default then exists or
would exist after giving effect to such replacement, to replace such Lender (the
"Replaced Lender") with one or more Eligible Transferees (collectively, the
"Replacement Lender"), none of whom shall constitute a Defaulting Lender at the
time of such replacement and each of whom shall be reasonably acceptable to the
Administrative Agent or, in the case of a replacement as provided in Section
13.12(b) where the consent of the respective Lender is required with respect to
less than all Tranches of its Loans or Commitments, at the option of Holdings,
to replace only the Commitments and/or outstanding Loans of such Lender in
respect of each Tranche where the consent of such Lender would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Lender; provided that:
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Lender) pursuant to
which the Replacement Lender shall acquire all of the Commitments and all
then outstanding Loans (or, in the case of the replacement of less than all
the Tranches of Commitments and outstanding Loans of the respective
Replaced Lender, all the Commitments and/or all then outstanding Loans
relating to the Tranche or Tranches with respect to which such Lender is
being replaced) of, and all participations in all then outstanding Letters
of Credit and Bank Guaranties issued pursuant to the respective Tranche or
Tranches where the respective Lender is being replaced by, the Replaced
Lender and, in connection therewith, shall pay to the Replaced Lender in
respect thereof an amount equal to the sum (in the relevant currency or
currencies) of (A) an amount equal to the principal of, and all accrued
interest on, all then outstanding Loans of the respective Replaced Lender
under each Tranche with respect to which such Replaced Lender is being
replaced, (B) an amount equal to the then remaining Credit-Linked Deposit
of such Lenders (if any) at such time, (C) an amount equal to all Unpaid
Drawings (if any) under each Tranche with respect to which the respective
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Replaced Lender is being replaced, in each case that have been funded by
(and not reimbursed to) such Replaced Lender (including by way of
application of such Lender's Credit-Linked Deposit) at such time, together
with all then unpaid interest with respect thereto at such time, (D) an
amount equal to all Unreimbursed Payments (if any) under each Tranche with
respect to which the respective Replaced Lender is being replaced, in each
case that have been funded by (and not reimbursed to) such Replaced Lender
(including by way of application of such Lender's Credit-Linked Deposit) at
such time, together with all then unpaid interest with respect thereto at
such time, and (E) an amount equal to all accrued, but theretofore unpaid,
Fees owing to the Replaced Lender (but only with respect to the relevant
Tranche or Tranches, in the case of the replacement of less than all
Tranches then held by the respective Replaced Lender) pursuant to Section
3.01; and
(ii) all obligations of the Borrowers owing to the Replaced Lender in
respect of each Tranche where such Replaced Lender is being replaced (other
than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid)
shall be paid in full to such Replaced Lender concurrently with such
replacement.
Upon the execution of the respective Assignment and Assumption Agreement, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 13.17
and, if so requested by the Replacement Lender (when applicable) pursuant to
Section 1.05(f), delivery to the Replacement Lender of the appropriate Note or
Notes executed by the respective Borrower, (x) the Replacement Lender shall
become a Lender hereunder and, unless the respective Replaced Lender continues
to have outstanding Loans or any Commitment hereunder, the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 1.10,
1.11, 2A.06, 2B.06, 4.04, 13.01 and 13.06), which shall survive as to such
Replaced Lender and (y) in the case of the replacement of any Credit-Linked
Commitment pursuant to this Section 1.13, the CL Percentages of the CL Lenders
shall be automatically adjusted at such time to give effect to such replacement.
In connection with any replacement of Lenders pursuant to, and as contemplated
by, this Section 1.13, each of the U.S. Borrower and the Bermuda Borrower hereby
irrevocably authorizes Holdings to take all necessary action, in the name of the
U.S. Borrower or the Bermuda Borrower, as the case may be, as described above in
this Section 1.13 in order to effect the replacement of the respective Lender or
Lenders in accordance with the preceding provisions of this Section 1.13. The
Credit-Linked Deposit funded by any CL Lender shall not be released in
connection with any assignment of its Credit-Linked Commitment, but shall
instead be purchased by the relevant assignee (at par, as described in clause
(i)(B) of the proviso above) and continue to be held by the Deposit Bank for
application (if not already applied) pursuant to Sections 2A.04 and 2B.04 in
respect of such assignee's obligations under the Credit-Linked Commitment
assigned to it.
1.14 Special Provisions Applicable to Lenders Upon the Occurrence of a
Sharing Event. (a) On the date of the occurrence of any Sharing Event, or
promptly thereafter, (i) if there have been any Drawings pursuant to Letters of
Credit which have not yet been reimbursed to the respective Issuing Lender
pursuant to Section 2A, the respective Issuing Lender shall seek reimbursement
therefor as permitted pursuant to Section 2A.04(c) and (ii) if there have been
any Bank Guaranty Payments pursuant to Bank Guaranties which have not yet been
reimbursed to the respective Bank Guaranty Issuer pursuant to Section 2B, the
respective Bank Guaranty Issuer shall seek reimbursement therefor as permitted
pursuant to Section 2B.04(c)). After giving effect to the actions taken (or
required to be taken) pursuant to the preceding sentence, the Administrative
Agent shall request that the Deposit Bank return (in
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which case the Deposit Bank shall return) to the Administrative Agent who shall,
in turn, return to the CL Lenders amounts (if any) representing Credit-Linked
Deposits which are permitted to be returned to the CL Lenders at such time in
accordance with Section 2C.04(a) hereof.
(b) (i) Upon the occurrence of a Sharing Event, but after giving
effect to the actions required to be taken pursuant to preceding clause (a) of
this Section 1.14 (although any failure by the Administrative Agent, the Deposit
Bank or any Lender to take the actions required of it pursuant to said clause
shall not prevent the actions required hereby, but the respective Administrative
Agent, Deposit Bank or Lender shall continue to be obligated to perform its
obligations as required above and the Administrative Agent shall be authorized
to make any equitable adjustments as may be deemed necessary or desirable
pursuant to the provisions of this Section 1.14(b)), the Lenders shall purchase
participations from other Lenders in each of the respective Tranches of Loans
and the CL Tranche (including, in the case of the CL Tranche, participations in
each outstanding Letter of Credit, each Unpaid Drawing owing to the CL Lenders,
each outstanding Bank Guaranty, each Unreimbursed Payment owing to the CL
Lenders and the Credit-Linked Deposits of the various CL Lenders) so that, after
giving effect to such purchases, each Lender shall have the same credit exposure
in each Tranche at such time (including, (x) in the case of the Total
Credit-Linked Commitment, an interest in each outstanding Letter of Credit, each
Unpaid Drawing owing to the CL Lenders, each outstanding Bank Guaranty, each
Unreimbursed Payment owing to the CL Lenders and the Credit-Linked Deposits of
the various CL Lenders and (y) a participation in the Credit-Linked Deposits
established pursuant to Section 2C.01 and all amounts deposited in the
Credit-Linked Deposit Account from time to time or to be returned to the Lenders
in accordance with the provisions of Section 2), whether or not such Lender
shall previously have participated therein, equal to such Lender's Exchange
Percentage thereof.
(ii) The foregoing actions pursuant to immediately preceding clause
(i) shall be accomplished pursuant to this Section 1.14(b) through purchases and
sales of participations in the various Tranches as required hereby, and at the
request of the Administrative Agent each Lender hereby agrees to enter into
customary participation agreements approved by the Administrative Agent to
evidence same. All purchases and sales of participations pursuant to this
Section 1.14(b) shall be made in Dollars. Without limiting the foregoing, it is
understood and agreed that, pursuant to this Section 1.14(b), the various CL
Lenders may be selling participations to the other Lenders in their
Credit-Linked Deposits (after giving effect to the actions required on, or
promptly following, the occurrence of the Sharing Event pursuant to Section
1.14(a)), and in connection therewith each CL Lender shall be paid, in
immediately available funds in Dollars, amounts equal to the percentage
participations sold by them in their Credit-Linked Deposits, which immediately
available funds shall be paid by the Lenders acquiring participations therein.
At the request of the Administrative Agent, each Lender which has sold
participations in any of its Tranches as provided above (through the
Administrative Agent) will deliver to each Lender (through the Administrative
Agent) which has so purchased a participation therein a participation
certificate in the appropriate amount as determined in conjunction with the
Administrative Agent. It is understood that the amount of immediately available
funds delivered by each Lender shall be calculated on a net basis, giving effect
to both the sales and purchases of participations by the various Lenders as
required above.
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(c) In the event that any Lender shall default on its obligation to
pay over any amount to the Administrative Agent in respect of any Letter of
Credit or any Bank Guaranty as provided in Section 1.14(b), each other Lender
shall have a claim against such defaulting Lender (and not against the
Administrative Agent, any Issuing Lender, any Bank Guaranty Issuer, the Deposit
Bank or any other Lender) for any damages sustained by it as a result of such
default.
(d) All determinations by the Administrative Agent pursuant to this
Section 1.14 shall be made by it in accordance with the provisions herein and
with the intent being to equitably share the credit risk for all Tranches (and
the Credit-Linked Deposits) hereunder in accordance with the provisions hereof.
Absent manifest error, all determinations by the Administrative Agent hereunder
shall be binding on the Borrowers, each of the Lenders, each Issuing Lender,
each Bank Guaranty Issuer and the Deposit Bank. The Administrative Agent shall
have no liability to either Borrower, any Lender, any Issuing Bank, any Bank
Guaranty Issuer or the Deposit Bank for any determinations made by it hereunder
except to the extent resulting from the Administrative Agent's gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
(e) Upon, and after, the occurrence of a Sharing Event (i) no further
Credit Events shall be made or occur, and (ii) all Credit-Linked Commitments and
all Incremental Term Loan Commitments (if any) shall be automatically
terminated. Notwithstanding anything to the contrary contained above, the
failure of any Lender to purchase its participating interests as required above
in any extensions of credit (and/or any Credit-Linked Deposits) upon the
occurrence of a Sharing Event shall not relieve any other Lender of its
obligation hereunder to purchase its participating interests in a timely manner,
but no Lender shall be responsible for the failure of any other Lender to
purchase the participating interest to be purchased by such other Lender on any
date.
(f) If any amount required to be paid by any Lender pursuant to this
Section 1.14 is not paid to the Administrative Agent on the date upon which the
Sharing Event occurred, such Lender shall, in addition to such aforementioned
amount, also pay to the Administrative Agent on demand an amount equal to the
product of (i) the amount so required to be paid by such Lender for the purchase
of its participations, (ii) the daily average Federal Funds Rate, during the
period from and including the date of request for payment to the date on which
such payment is immediately available to the Administrative Agent and (iii) a
fraction the numerator of which is the number of days that elapsed during such
period and the denominator of which is 360. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts payable under this
Section 1.14 shall be conclusive in the absence of manifest error. Amounts
payable by any Lender pursuant to this Section 1.14 shall be paid to the
Administrative Agent for the account of the relevant Lenders, provided that, if
the Administrative Agent (in its sole discretion) has elected to fund on behalf
of such other Lender the amounts owing to such other Lenders, then the amounts
shall be paid to the Administrative Agent for its own account.
(g) Whenever, at any time after the relevant Lenders have received
from any other Lenders purchases of participations pursuant to this Section
1.14, the various Lenders receive any payment on account thereof, such Lenders
will distribute to the Administrative Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the
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period of time during which such participations were outstanding) in like funds
as received, provided, however, that in the event that such payment received by
any Lenders is required to be returned, the Lenders who received previous
distributions in respect of their participating interests therein will return to
the respective Lenders any portion thereof previously so distributed to them in
like funds as such payment is required to be returned by the respective Lenders.
(h) Each Lender's obligation to purchase participating interests
pursuant to this Section 1.14 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, any Credit Agreement Party or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of any Default or Event of
Default, (iii) any adverse change in the condition (financial or otherwise) or
prospects of any Credit Agreement Party or any other Person, (iv) any breach of
this Agreement or any other Credit Document by any Credit Agreement Party, any
Lender, any Issuing Lender, any Bank Guaranty Issuer, any Agent, the Deposit
Bank or any other Person, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(i) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above, (i) the
relevant Borrower shall pay to each Lender granting any participations as
required above, for the account of the respective Lender which has purchased
such participations, any increased costs and indemnities (including, without
limitation, pursuant to Sections 1.11, 1.12, 2A.06, 2B.06 and 4.04) to the same
extent as if such Lender which has purchased such participations were the direct
Lender as opposed to a participant therein, which increased costs shall be
calculated without regard to Section 1.13, Section 13.04(a) or the penultimate
sentence of Section 13.04(b) and (ii) each Lender which has sold such
participations shall be entitled to receive from the relevant Borrower
indemnification from and against any and all taxes imposed as a result of the
sale of the participations pursuant to this Section 1.14. Each Borrower
acknowledges and agrees that, upon the occurrence of a Sharing Event and after
giving effect to the requirements of this Section 1.14, increased Taxes may be
owing by it pursuant to Section 4.04, which Taxes shall be paid (to the extent
provided in Section 4.04) by the respective Borrower or Borrowers, without any
claim that the increased Taxes are not payable because same resulted from the
participations effected as otherwise required by this Section 1.14.
1.15 Incremental Term Loan Commitments. (a) So long as the Incremental
Term Loan Commitment Request Requirements are satisfied at the time of the
delivery of the request referred to below, each Borrower shall have the right,
in consultation and coordination with the Administrative Agent as to all of the
matters set forth below in this Section 1.15, but without requiring the consent
of any of the Lenders, to request, at any time and from time to time after the
Restatement Effective Date and prior to the date which is 12 months prior to the
then latest Maturity Date, that one or more Lenders (and/or one or more other
Persons which are Eligible Transferees and which will become Lenders) provide
Incremental Term Loan Commitments to such Borrower and, subject to the terms and
conditions contained in this Agreement and in the respective Incremental Term
Loan Commitment Agreement, make Incremental Term Loans pursuant thereto; it
being understood and agreed, however, that (i) no Lender shall be obligated to
provide an Incremental Term Loan Commitment as a result of any
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such request by such Borrower, and until such time, if any, as such Lender has
agreed in its sole discretion to provide an Incremental Term Loan Commitment and
executed and delivered to the Administrative Agent an Incremental Term Loan
Commitment Agreement as provided in clause (b) of this Section 1.15 such Lender
shall not be obligated to fund any Incremental Term Loans, (ii) any Lender
(including any Eligible Transferee who will become a Lender) may so provide an
Incremental Term Loan Commitment without the consent of any other Lender, (iii)
each Tranche of Incremental Term Loan Commitments shall be made available to a
single Incremental Term Loan Borrower and shall be denominated in Dollars, (iv)
the amount of each Tranche of Incremental Term Loan Commitments shall be in a
minimum aggregate amount for all Lenders which provide an Incremental Term Loan
Commitment under such Tranche of Incremental Term Loans (including Eligible
Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate
amount of all Incremental Term Loan Commitments provided pursuant to this
Section 1.15 shall not exceed the Maximum Incremental Term Loan Commitment
Amount (it being understood and agreed, however, to the extent that any such
Incremental Term Loan Commitments are obtained but later expire, terminate or
are voluntarily reduced in each case without being utilized, the amount of such
Incremental Term Loan Commitments so expired, terminated or voluntarily reduced
may again be available to be obtained under this Section 1.15 within the limits
set forth herein), (vi) the up-front fees and, if applicable, any unutilized
commitment fees and/or other fees, payable in respect of each Incremental Term
Loan Commitment shall be separately agreed to by Holdings, the respective
Incremental Term Loan Borrower and each Incremental Term Loan Lender (and with
all such fees to be disclosed in writing by Holdings to the Administrative
Agent), (vii) each Tranche of Incremental Term Loans shall have (I) (x) an
Incremental Term Loan Maturity Date of no earlier than the then latest Maturity
Date as then in effect, and (y) a Weighted Average Life to Maturity of no less
than the Weighted Average Life to Maturity as then in effect for the Tranche of
then outstanding Loans with the longest Weighted Average Life to Maturity and
(II) an "interest rate" or "interest rates" applicable to such Tranche of
Incremental Term Loans (which, for such purposes only, shall be determined by
the Administrative Agent and deemed to include all upfront or similar fees or
original issue discount (amortized over the life of such Incremental Term Loans)
payable to all Lenders providing such Incremental Term Loans, but exclusive of
any arrangement, structuring or other fees payable in connection therewith that
are not shared with all Lenders providing such Tranche of Incremental Term
Loans) that may (at such time or from time to time thereafter) exceed the
"interest rates" applicable to the Term Loans provided that, in the event that
the "interest rate" excess applicable to such Tranche of Incremental Term Loans
shall at such time be greater than 0.50% (or its equivalent), the Applicable
Margin for the Tranche B Term Loans, the Tranche C Term Loans and each other
then existing Tranche of Incremental Term Loans shall be increased by such
amounts, and for such time periods, as are needed so that at no time shall the
"interest rate" for the respective new Tranche of Incremental Term Loans
(calculated as described above) exceed the relevant interest rates applicable to
the then existing Tranches of Term Loans by more than 0.50%; provided further,
that, at no time shall the provisions of this Section 1.15 be construed to
result in any decrease in any interest rate applicable to any then existing
Tranche of Term Loans (including after giving effect to any prior increases in
interest rates applicable thereto pursuant to the preceding provisions of this
Section 1.15(a)), (viii) the proceeds of all Incremental Term Loans shall be
used only for the purposes permitted by Section 7.05(a), (ix) each Incremental
Term Loan Commitment Agreement shall specifically designate, with the approval
of the Administrative Agent, the Tranche of the Incremental Term Loan
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Commitments being provided thereunder (which Tranche shall be a new Tranche
(i.e., not the same as any existing Tranche of Incremental Term Loans,
Incremental Term Loan Commitments or other Term Loans) unless the requirements
of Section 1.15(c) are satisfied), (x) all Incremental Term Loans (and all
interest, fees and other amounts payable thereon) shall be Obligations under
this Agreement and the other applicable Credit Documents and shall be secured by
the relevant Security Documents, and guaranteed under each relevant Guaranty, on
a pari passu basis with all other Loans of the applicable Borrower secured by
each such Security Agreement and guaranteed under each such Guaranty, and (xi)
each Lender (including any Eligible Transferee who will become a Lender)
agreeing to provide an Incremental Term Loan Commitment pursuant to an
Incremental Term Loan Commitment Agreement shall, subject to the satisfaction of
the relevant conditions set forth in this Agreement, make Incremental Term Loans
under the Tranche specified in such Incremental Term Loan Commitment Agreement
as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be
Incremental Term Loans under such Tranche for all purposes of this Agreement and
the other applicable Credit Documents.
(b) At the time of the provision of Incremental Term Loan Commitments
pursuant to this Section 1.15, the respective Incremental Term Loan Borrower,
the Administrative Agent and each such Lender or other Eligible Transferee which
agrees to provide an Incremental Term Loan Commitment (each, an "Incremental
Term Loan Lender") shall execute and deliver to the Administrative Agent an
Incremental Term Loan Commitment Agreement substantially in the form of Exhibit
P (appropriately completed), with the effectiveness of the Incremental Term Loan
Commitment provided therein to occur on the date set forth in such Incremental
Term Loan Commitment Agreement, which date in any event shall be no earlier than
the date on which (w) all fees required to be paid in connection therewith at
the time of such effectiveness shall have been paid (including, without
limitation, any agreed upon up-front or arrangement fees owing to the
Administrative Agent), (x) all Incremental Term Loan Commitment Requirements are
satisfied, (y) all other conditions set forth in this Section 1.15 shall have
been satisfied, and (z) all other conditions precedent that may be set forth in
such Incremental Term Loan Commitment Agreement shall have been satisfied. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Term Loan Commitment Agreement, and at such time, (i)
Schedule I shall be deemed modified to reflect the revised Incremental Term Loan
Commitments of the affected Lenders and (ii) to the extent requested by any
Incremental Term Loan Lender, Incremental Term Notes will be issued at the
respective Incremental Term Loan Borrower's expense, to such Incremental Term
Loan Lender, to be in conformity with the requirements of Section 1.05(d) (with
appropriate modification) to the extent needed to reflect the new Incremental
Term Loans made by such Incremental Term Loan Lender.
(c) Notwithstanding anything to the contrary contained above in this
Section 1.15, the Incremental Term Loan Commitments provided by an Incremental
Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant
to each Incremental Term Loan Commitment Agreement shall constitute a new
Tranche, which shall be separate and distinct from the existing Tranches
pursuant to this Agreement (with a designation which may be made in letters
(i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e.,
β-β, β-β, β-β, β-β, β-β, β-β, etc.), provided that, with the consent of the
Administrative Agent, the parties to a given Incremental Term Loan Commitment
Agreement may specify therein that the respective
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Incremental Term Loans made pursuant thereto shall constitute part of, and be
added to, an existing Tranche of Incremental Term Loans or to the outstanding
Tranche of Tranche B Term Loans or Tranche C Term Loans, in either case so long
as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental
Term Loan Commitment Agreement shall have the same Borrower, shall have the
same Maturity Date and shall have the same Applicable Margins as the
Tranche of Term Loans to which the new Incremental Term Loans are being
added;
(ii) the new Incremental Term Loans shall have the same Scheduled
Repayment dates as then remain with respect to the Tranche to which such
new Incremental Term Loans are being added (with the amount of each
Scheduled Repayment applicable to such new Incremental Term Loans to be the
same (on a proportionate basis) as is theretofore applicable to the Tranche
to which such new Incremental Term Loans are being added, thereby
increasing the amount of each then remaining Scheduled Repayment of the
respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans,
and notwithstanding anything to the contrary set forth in Section 1.09,
such new Incremental Term Loans shall be added to (and form part of) each
Borrowing of outstanding Term Loans of the respective Tranche on a pro rata
basis (based on the relative sizes of the various outstanding Borrowings),
so that each Lender will participate proportionately in each then
outstanding Borrowing of Term Loans of the respective Tranche.
To the extent the provisions of preceding clause (iii) require that Lenders
making new Incremental Term Loans add such Incremental Term Loans to the then
outstanding Borrowings of Eurodollar Loans of such Tranche, it is acknowledged
that the effect thereof may result in such new Incremental Term Loans having
short Interest Periods (i.e., an Interest Period that began during an Interest
Period then applicable to outstanding Eurodollar Loans of such Tranche and which
will end on the last day of such Interest Period). In connection therewith, the
respective Incremental Term Loan Borrower may agree, in the respective
Incremental Term Loan Commitment Agreement, to compensate the Lenders making the
new Incremental Term Loans of the respective Tranche for funding Eurodollar
Loans during an existing Interest Period on such basis as may be agreed by such
Incremental Term Loan Borrower and the respective Incremental Term Loan Lender
or Incremental Term Loan Lenders.
Section 2 Letters of Credit; Bank Guaranties; Etc.
Section 2A. Letters of Credit.
2A.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, a Borrower may request an Issuing Lender, at any
time and from time to time on and after the Restatement Effective Date and prior
to the fifth Business Day (or the 30th day in the case of Trade Letters of
Credit) preceding the CL Maturity Date, to issue, (x) for the account of the
U.S. Borrower (in the case of requests made by it) or the account of the Bermuda
Borrower (in the case of requests made by it) and for the benefit of any holder
(or any trustee,
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agent or other similar representative for any such holders) of L/C Supportable
Indebtedness of the respective Account Party or any of its or their Wholly-Owned
Subsidiaries, irrevocable standby letters of credit in a form customarily used
by such Issuing Lender or in such other form as has been approved by such
Issuing Lender (each such standby letter of credit, a "Standby Letter of
Credit") in support of such L/C Supportable Indebtedness and (y) for the account
of the respective Account Party and for the benefit of sellers of goods to the
respective Account Party or any of its or their Subsidiaries in the ordinary
course of business, irrevocable sight trade letters of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such trade letter of credit, a "Trade
Letter of Credit", and each such Standby Letter of Credit and Trade Letter of
Credit, a "Letter of Credit" and, collectively, the "Letters of Credit"). All
Letters of Credit shall be issued on a sight basis only and shall be denominated
in Dollars or, subject to the provisions of Section 2C.03, an Alternative
Currency. Each Letter of Credit shall be deemed to constitute a utilization of
the Credit-Linked Commitments and shall, subject to the provisions of Section
1.14 if a Sharing Event occurs, be participated in (as more fully described in
following Section 2A.04(a)) by the CL Lenders in accordance with their
respective CL Percentages (subject to the provisions of Section 2C to the extent
applicable). All Letters of Credit shall be denominated in Dollars or an
Alternative Currency. The Bermuda Borrower shall have no liability with respect
to any U.S. Borrower Letter of Credit which may be issued to the U.S. Borrower.
(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender hereby agrees (subject to Section 2C.03, to the extent
applicable in the case of Non-Dollar Denominated Letters of Credit) that it
will, at any time and from time to time on and after the Restatement Effective
Date and prior to (i) the fifth Business Day in the case of Standby Letters of
Credit, or (ii) the 30th day, in the case of Trade Letters of Credit, preceding
the CL Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the respective Account Party one or more
Letters of Credit, (x) in the case of Trade Letters of Credit, in support of
trade obligations of the respective Account Party or any of its or their
Subsidiaries that arise in the ordinary course of business or (y) in the case of
Standby Letters of Credit, in support of such L/C Supportable Indebtedness as is
permitted to remain outstanding without giving rise to a Default or Event of
Default hereunder; provided that the respective Issuing Lender shall be under no
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated) not in effect on the Restatement Effective Date, or any
unreimbursed loss, cost or expense which was not applicable, in effect or
known to such Issuing Lender as of the Restatement Effective Date and which
such Issuing Lender in good βββββ βββββ material to it; or
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(ii) such Issuing Lender, prior to the issuance of such Letter of
Credit, shall have received written notice from any Credit Agreement Party
or the Required Lenders of the type described in clause (iv) of Section
2A.01(c) or the last sentence of Section 2A.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued at any time when the Aggregate CL Exposure exceeds (or would after giving
effect to such issuance exceed) either (x) the Total Credit-Linked Commitment at
such time or (y) the aggregate amount of the Credit-Linked Deposits in the
Credit-Linked Deposit Account at such time, (ii) (x) each Standby Letter of
Credit shall by its terms terminate on or before the date which occurs 12 months
after the date of the issuance thereof (although any such Standby Letter of
Credit may be extendable for successive periods of up to 12 months, but not
beyond the fifth Business Day preceding the CL Maturity Date, on terms
acceptable to the Issuing Lender thereof), provided that a Standby Letter of
Credit issued to support obligations under any Specified Existing Ship Lease may
terminate by its terms on or prior to the earlier to occur of (1) the date which
occurs 24 months after the date of the issuance thereof and (2) the fifth
Business Day preceding the CL Maturity Date and (y) each Trade Letter of Credit
shall by its terms terminate on or before the date occurring not later than 180
days after such Trade Letter of Credit's date of issuance, (iii) (x) no Standby
Letter of Credit shall have an expiry date occurring later than the fifth
Business Day preceding the CL Maturity Date and (y) no Trade Letter of Credit
shall have an expiry date occurring later than 30 days prior to the CL Maturity
Date and (iv) no Issuing Lender will issue any Letter of Credit after it has
received written notice from any Credit Agreement Party or the Required Lenders
stating that a Default or an Event of Default exists until such time as such
Issuing Lender shall have received a written notice of (x) rescission of such
notice from the party or parties originally delivering the same or (y) a waiver
of such Default or Event of Default by the Required Lenders.
(d) Part A of Schedule XI hereto contains a description of certain
letters of credit issued (or deemed issued) pursuant to the Original Credit
Agreement and outstanding on the Restatement Effective Date (and setting forth,
with respect to each such letter of credit, (i) the name of the issuing lender,
(ii) the letter of credit number, (iii) the name(s) of the account party or
account parties, (iv) the stated amount (including the currency in which such
letter of credit is denominated, which shall be Dollars or an Alternative
Currency), (v) the name of the beneficiary, (vi) the expiry date and (vii)
whether such letter of credit constitutes a standby letter of credit or a trade
letter of credit). Each such letter of credit, including any extension or
renewal thereof (each, as amended from time to time in accordance with the terms
thereof and hereof, an "Existing Letter of Credit") shall constitute a "Letter
of Credit" and a "Bermuda Borrower Letter of Credit" or a "U.S. Borrower Letter
of Credit" (as set forth on Part A of Schedule XI) for all purposes of this
Agreement and issued, for purposes of Section 2A.04(a), on the Restatement
Effective Date. Any Lender hereunder (and any of such Lender's Affiliates and/or
branches) which has issued an Existing Letter of Credit shall constitute an
"Issuing Lender" for all purposes of this Agreement.
2A.02 Minimum Stated Amount. The Stated Amount of each Letter of
Credit upon issuance shall be not less than (x) in the case of a Dollar
Denominated Letter of Credit, $250,000, (y) in the case of a Euro Denominated
Letter of Credit, E150,000 and (z) in the case of
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a Sterling Denominated Letter of Credit, L150,000, or in each case such lesser
amount as is reasonably acceptable to the respective Issuing Lender.
2A.03 Letter of Credit Requests. (a) Whenever an Account Party
desires that a Letter of Credit be issued for its account, such Account Party
shall give the Administrative Agent (at the appropriate Notice Office) and the
respective Issuing Lender at least 3 Business Days' (or such shorter period as
is acceptable to such Issuing Lender in any given case) written notice prior to
the proposed date of issuance (which shall be a Business Day). Each notice shall
be in the form of Exhibit C-1 (each, a "Letter of Credit Request"), including,
without limitation, by specifying: (i) whether the requested Letter of Credit
shall constitute a U.S. Borrower Letter of Credit or a Bermuda Borrower Letter
of Credit; and (ii) the currency in which the requested Letter of Credit is to
be denominated (which shall be Dollars or, to the extent permitted hereunder, an
Alternative Currency. Each Letter of Credit Request shall include any other
documents as such Issuing Lender customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the applicable Account Party that such Letter
of Credit may be issued in accordance with, and will not violate the
requirements of, Section 2A.01(c). Unless the respective Issuing Lender has
received notice from the Required Lenders before it issues a Letter of Credit
that one or more of the applicable conditions specified in Section 5 or 6, as
the case may be, are not then satisfied, or that the issuance of such Letter of
Credit would violate Section 2A.01(c), then such Issuing Lender may issue the
requested Letter of Credit for the account of the respective Account Party in
accordance with such Issuing Lender's usual and customary practices.
2A.04 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Lender of any Letter of Credit, but subject to Section
2C.03 to the extent applicable in the case of Non-Dollar Denominated Letters of
Credit, such Issuing Lender shall be deemed to have sold and transferred to each
CL Lender (each such Lender with respect to any Letter of Credit, in its
capacity under this Section 2A.04, a "L/C Participant"), and each such L/C
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Issuing Lender, without recourse or warranty, an
undivided interest and participation (each an "L/C Participation"), in a
percentage equal to such L/C Participant's CL Percentage in such Letter of
Credit, and each Drawing made thereunder and the obligations of the respective
Account Party under this Agreement with respect thereto (although CL Facility
Fees shall be payable directly to the Administrative Agent for the account of
the CL Lenders as provided in Section 3.01(a) and the L/C Participants shall
have no right to receive any portion of any Facing Fees or any administration
fees with respect to any such Letters of Credit) and any security therefor or
guaranty pertaining thereto. Upon any change in the Credit-Linked Commitments
and, as a result thereof, the CL Percentages of the CL Lenders pursuant to
Section 1.13, or 13.04, it is hereby agreed that with respect to all outstanding
Letters of Credit and Unpaid Drawings relating thereto, there shall be an
automatic adjustment to the participations pursuant to this Section 2A.04 to
reflect the new CL Percentages of the CL Lenders. With respect to each Letter of
Credit from time to time outstanding, all calculations of the percentage
participations therein of the various CL Lenders shall be made from time to time
by the Administrative Agent, which calculations shall be conclusive absent
manifest error. Furthermore, upon the occurrence of a Sharing Event and as more
fully set forth in Section 1.14, additional sub-participations may be
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required to be granted by the various CL Lenders in their participations in
outstanding Letters of Credit, in each case in accordance with, and subject to
the provisions of, Section 1.14.
(b) In determining whether to pay under any Letter of Credit, the
respective Issuing Lender shall have no obligation relative to the other Lenders
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), shall not create
for such Issuing Lender any resulting liability to any Account Party or any
Lender.
(c) In the event that any Issuing Lender makes any payment or
disbursement under any Letter of Credit issued by it and the respective Account
Party shall not have reimbursed such amount in full to such Issuing Lender
pursuant to Section 2A.05(a) by the date required by said Section 2A.05(a) for
such reimbursement, such Issuing Lender shall promptly notify the Administrative
Agent, which shall promptly notify each L/C Participant therein and the Deposit
Bank of such failure, and each CL Lender (including in its capacity as an L/C
Participant) hereby irrevocably authorizes the Deposit Bank (and the Deposit
Bank hereby agrees) to reimburse such Issuing Lender for such amount in Dollars
(or, to the extent that the respective Unpaid Drawing is in an Alternative
Currency, in an amount equal to the Dollar Equivalent thereof, as determined by
the Administrative Agent on the date on which such payment or disbursement was
made under the respective Letter of Credit) solely from such CL Lender's CL
Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank in the
Credit-Linked Deposit Account, in which case the Total Credit-Linked Commitment
shall be reduced by the amount so applied (with a corresponding reduction in the
Credit-Linked Commitment of each CL Lender equal to such CL Lender's CL
Percentage of such aggregate amount so applied); provided that any portion of
the Unpaid Drawings with respect to a Non-Dollar Denominated Letter of Credit,
which, because of currency fluctuations, represents amounts in excess of the
Total Credit-Linked Deposits (as more fully described in Section 2C.03), shall
not be reimbursed from Credit-Linked Deposits but shall instead be immediately
repaid by the respective Account Party. Furthermore, if any Specified Default or
any Event of Default then exists, the respective Issuing Lender may, with
respect to any payment or disbursement made by it under any Letter of Credit,
request the Deposit Bank, in which case each CL Lender hereby irrevocably
authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse
the Issuing Lender, solely from such CL Lender's CL Percentage of the
Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the
Deposit Bank, for any Drawing under such Letter of Credit as provided in the
immediately preceding sentence (notwithstanding the date of reimbursement of any
such Drawings by the date required by Section 2A.05(a)), in which case the Total
Credit-Linked Commitment shall be reduced by the amount so applied as otherwise
provided in the immediately preceding sentence, and any amounts actually
received pursuant to Section 2A.05(a) shall be applied to reimburse L/C
Participants as provided in following Section 2A.04(d).
(d) Whenever any Issuing Lender receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of
such Issuing
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Lender any payments from the L/C Participants (or from the Deposit Bank on their
behalf) pursuant to Section 2A.04(c) above, such Issuing Lender shall, after
paying itself any amounts owing to it as described in Section 2C.03 in the case
of payments received with respect to Non-Dollar Denominated Letters of Credit,
pay (in same day funds in Dollars) to the Administrative Agent (and the
Administrative Agent shall promptly pay (in same day funds in Dollars) to each
L/C Participant which has paid its relevant CL Percentage thereof) an amount
equal to such L/C Participant's share (based on the proportionate aggregate
amount funded by such L/C Participant to the aggregate amount funded by all L/C
Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations.
(e) Each Issuing Lender shall, promptly after the issuance of, or
amendment or modification to, a Standby Letter of Credit, give the
Administrative Agent and the respective Account Party written notice of such
issuance, amendment or modification, as the case may be, and such notice shall
be accompanied by a copy of such Standby Letter of Credit, such amendment or
such modification, as the case may be. Promptly upon receipt of such notice, the
Administrative Agent shall notify each L/C Participant, in writing, of such
issuance, amendment or modification and if any L/C Participant shall so request,
the Administrative Agent shall furnish said L/C Participant with a copy of such
Standby Letter of Credit, such amendment or such modification, as the case may
be.
(f) Each Issuing Lender (other than DBAG) shall deliver to the
Administrative Agent and the Deposit Bank, promptly on the first Business Day of
each week, by facsimile transmission, the aggregate daily Stated Amount
available to be drawn under the outstanding Trade Letters of Credit issued by
such Issuing Lender for the previous week.
(g) The obligations of the L/C Participants to make payments to the
Administrative Agent for the account of the respective Issuing Lender with
respect to Letters of Credit issued by it shall be irrevocable and not subject
to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
any Credit Party or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Lender, any Issuing Lender, any L/C Participant, or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between any Credit Party or any of
its Subsidiaries and the beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided that the L/C Participants shall not be obligated to reimburse such
Issuing Lender for any wrongful payment made by such Issuing Lender under a
Letter of Credit issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such Issuing
Lender (as determined by a court of competent jurisdiction in a final and
non-appealable decision). Any action taken or omitted to be taken by any Issuing
Lender under or in connection with any Letter of Credit shall not create for
such Issuing Lender any resulting liability to the L/C Participants or any other
Person unless such action is taken or omitted to be taken with gross negligence
or willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision).
2A.05 Agreement to Repay Letter of Credit Drawings. (a) The U.S.
Borrower hereby agrees (in the case of U.S Borrower Letters of Credit), and the
Bermuda Borrower hereby agrees (in the case of Bermuda Borrower Letters of
Credit) to reimburse the respective Issuing Lender, by making payment in Dollars
(or, if the respective Letter of Credit is denominated in an Alternative
Currency, in an amount equal to the Dollar Equivalent of the respective payment
or disbursement, as determined by the Administrative Agent on the date of such
payment or disbursement) to the Administrative Agent in immediately available
funds at the Payment Office (or by making the payment directly to such Issuing
Lender at such location as may otherwise have been agreed upon by the respective
Account Party and such Issuing Lender), for any payment or disbursement (in the
case of any such payment or disbursement under any Non-Dollar Denominated Letter
of Credit, taking the Dollar Equivalent, as determined by the Administrative
Agent, of the amount of the respective payment or disbursement on the date upon
which the respective payment or disbursement is made) made by such Issuing
Lender under any Letter of Credit issued by it (each such amount so paid until
reimbursed, an "Unpaid Drawing"), not later than the third Business Day after
the Administrative Agent or the Issuing Lender notifies the respective Account
Party of such payment or disbursement (provided that no such notice shall be
required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing, in which case all such Unpaid Drawings
shall be due and payable immediately without presentment, demand, protest or
notice of any kind (all of which are hereby waived by the respective Account
Party)), with interest on the amount so paid or disbursed by such Issuing
Lender, to the extent not reimbursed prior to 1:00 P.M. (New York time), on the
date of such payment or disbursement, from and including the date paid or
disbursed to but excluding the date such Issuing Lender is reimbursed by the
respective Account Party therefor at a rate per annum equal to the Base Rate in
effect from time to time plus the Applicable Margin for Tranche B Term Loans
maintained as Base Rate Loans, as in effect from time to time; provided,
however, to the extent such amounts are not reimbursed prior to 1:00 P.M. (New
York time) on the third Business Day following the receipt by the Account Party
of notice to the respective Account Party by the Administrative Agent or the
respective Issuing
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Lender of such payment or disbursement (or, if sooner, from the date of
occurrence of a Default or an Event of Default under Section 10.05), interest
shall thereafter accrue on the amounts so paid or disbursed by such Issuing
Lender (and until reimbursed by the respective Account Party) at a rate per
annum which is 2% in excess of the rate otherwise applicable to the respective
Unpaid Drawing as provided above, with all such interest payable pursuant to
this Section 2A.05 to be payable on demand. The respective Issuing Lender shall
give the respective Account Party prompt notice of each Drawing under any Letter
of Credit, provided that the failure to give, or any delay in giving, any such
notice shall in no way affect, impair or diminish the respective Account Party's
obligations under this Agreement. The obligations of the respective Account
Party to repay Unpaid Drawings as required above shall not be reduced, or
satisfied, in any respect by payments made to the Issuing Lender with any
amounts on deposit in the Credit-Linked Deposit Account or as otherwise provided
in Section 2A.04(c).
(b) The obligations of the U.S. Borrower (with respect to U.S.
Borrower Letters of Credit) and the obligations of the Bermuda Borrower (with
respect to Bermuda Borrower Letters of Credit) under this Section 2A.05 to
reimburse the respective Issuing Lender with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the respective Account Party may have or have had
against any Lender (including in its capacity as Issuing Lender or as L/C
Participant), including, without limitation, any defense based upon the failure
of any drawing under a Letter of Credit (each, a "Drawing") to conform to the
terms of such Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the respective Account Party being to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered and that they appear to substantially comply on their face with
requirements of such Letter of Credit; provided, however, that no Account Party
shall be obligated to reimburse any Issuing Lender for any wrongful payment made
by such Issuing Lender under a Letter of Credit issued by it as a result of
deliberate acts or omissions constituting willful misconduct or gross negligence
on the part of such Issuing Lender (as determined by a court of competent
jurisdiction in a final and non-appealable decision). Any action taken or
omitted to be taken by any Issuing Lender under or in connection with any Letter
of Credit shall not create for such Issuing Lender any resulting liability to
any Account Party unless such action is taken or admitted to be taken with gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
2A.06 Increased Costs. If after the Restatement Effective Date,
the Deposit Bank, any Issuing Lender or any L/C Participant determines in good
faith that the adoption or effectiveness after the Restatement Effective Date of
any applicable law, rule or regulation, order, guideline or request or any
change therein, or any change after the Restatement Effective Date in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Issuing Lender or any L/C Participant with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency shall either (i) impose, modify or
make applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Issuing Lender or such L/C
Participant's participation therein, or (ii) impose on the Deposit Bank, any
Issuing Lender or any L/C Participant any other
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conditions directly or indirectly affecting this Agreement, the Credit-Linked
Deposits, any Letter of Credit or such L/C Participant's participation therein;
and the result of any of the foregoing is to increase the cost to the Deposit
Bank, such Issuing Lender or such L/C Participant of issuing, maintaining or
participating in the Credit-Linked Deposits or any Letter of Credit, or to
reduce the amount of any sum received or receivable by the Deposit Bank, such
Issuing Lender or such L/C Participant hereunder or under the other Credit
Documents or reduce the rate of return on its capital with respect to
Credit-Linked Deposits or Letters of Credit, then, upon written demand to the
U.S. Borrower or the Bermuda Borrower, as the case may be, by the Deposit Bank,
such Issuing Lender or such L/C Participant (a copy of which notice shall be
sent by the Deposit Bank, such Issuing Lender or such L/C Participant to the
Administrative Agent), accompanied by the certificate described in the last
sentence of this Section 2A.06, the respective Account Party shall pay to the
Deposit Bank, such Issuing Lender or such L/C Participant for such increased
cost or reduction. A certificate submitted to the relevant Borrower by the
Deposit Bank, such Issuing Lender or such L/C Participant, as the case may be (a
copy of which certificate shall be sent by the Deposit Bank, such Issuing Lender
or such L/C Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the determination of such additional amount or
amounts necessary to compensate the Deposit Bank, such Issuing Lender or such
L/C Participant as aforesaid shall be final and conclusive and binding on such
Account Party absent manifest error, although the failure to deliver any such
certificate shall not release or diminish such Account Party's obligations to
pay additional amounts pursuant to this Section 2A.06 upon subsequent receipt of
such certificate.
Section 2B. Bank Guaranties.
2B.01 Bank Guaranties. (a) Subject to and upon the terms and
conditions herein set forth, a Borrower may request a Bank Guaranty Issuer, at
any time and from time to time on and after the Restatement Effective Date and
prior to the tenth Business Day preceding the CL Maturity Date, to issue, for
the account of the U.S. Borrower (in the case of requests made by it) or the
account of the Bermuda Borrower (in the case of requests made by it) and for the
benefit of any holder (or any trustee, agent or other similar representative for
any such holders) of B/G Supportable Indebtedness of the respective Account
Party or any of its or their Wholly-Owned Subsidiaries, a bank guaranty in a
form customarily used by such Bank Guaranty Issuer or in such other form as has
been approved by such Bank Guaranty Issuer (each such bank guaranty, a "Bank
Guaranty" and collectively, the "Bank Guaranties") in support of such B/G
Supportable Indebtedness (it being understood and agreed that (i) the form of
Bank Guaranties shall be subject to the respective Bank Guaranty Issuer's
internal policies and procedures for the issuance of bank guaranties and to
applicable local law restrictions and regulations and (ii) each Bank Guaranty
Issuer may request the respective Account Party to accept such Bank Guaranty
Issuer's general business conditions specifically applicable to its bank
guaranty business prior to the issuance of any Bank Guaranty). Each Bank
Guaranty shall constitute a utilization of the Credit-Linked Commitments and
shall, subject to the provisions of Section 1.14 if a Sharing Event occurs, be
participated in (as more fully described in following Section 2B.04(a)) by the
CL Lenders in accordance with their respective CL Percentages. All Bank
Guaranties shall be denominated in Dollars or an Alternative Currency and shall
expressly provide the maximum amount that may be paid thereunder. Each Bank
Guaranty shall constitute either a U.S. Borrower Bank Guaranty or a Bermuda
Borrower Bank Guaranty. The Bermuda Borrower shall
-30-
have no liability with respect to any U.S. Borrower Bank Guaranty which may be
issued to the U.S. Borrower.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank Guaranty Issuer hereby agrees (subject to Section 2C.03, to the extent
applicable in the case of Non-Dollar Denominated Bank Guaranties) that it will,
at any time and from time to time on and after the Restatement Effective Date
and prior to the tenth Business Day preceding the CL Maturity Date, following
its receipt of the respective Bank Guaranty Request, issue for the account of
the respective Account Party one or more Bank Guaranties, in support of such B/G
Supportable Indebtedness as is permitted to remain outstanding without giving
rise to a Default or Event of Default hereunder; provided that the respective
Bank Guaranty Issuer shall be under no obligation to issue any Bank Guaranty if
at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Bank
Guaranty Issuer from issuing such Bank Guaranty or any requirement of law
applicable to such Bank Guaranty Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Bank Guaranty Issuer shall prohibit, or request
that such Bank Guaranty Issuer refrain from, the issuance of bank
guaranties generally or such Bank Guaranty in particular or shall impose
upon such Bank Guaranty Issuer with respect to such Bank Guaranty any
restriction or reserve or capital requirement (for which such Bank Guaranty
Issuer is not otherwise compensated) not in effect on the Restatement
Effective Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Bank Guaranty Issuer as of the
Restatement Effective Date and which such Bank Guaranty Issuer in good
βββββ βββββ material to it; or
(ii) such Bank Guaranty Issuer, prior to the issuance of such Bank
Guaranty, shall have received written notice from any Credit Agreement
Party or the Required Lenders prior to the issuance of such Bank Guaranty
of the type described in clause (v) of Section 2B.01(c) or the last
sentence of Section 2B.03(b).
(c) Notwithstanding the foregoing, (i) no Bank Guaranty shall be
issued at any time when the Aggregate CL Exposure exceeds (or would after giving
effect to such issuance exceed) either (x) the Total Credit-Linked Commitment at
such time or (y) the aggregate amount of the Credit-Linked Deposits in the
Credit-Linked Deposit Account at such time, and (ii) each Bank Guaranty shall by
its terms terminate on or before the date which occurs 12 months after the date
of the issuance thereof (although any such Bank Guaranty may be extendable for
successive periods of up to 12 months, but not beyond the tenth Business Day
preceding the CL Maturity Date, on terms acceptable to the Bank Guaranty Issuer
thereof), provided, however, that a Bank Guaranty shall not be required to
terminate by its terms on or before the twelve month anniversary of the date of
issuance thereof if the respective Account Party reasonably determines that the
intended beneficiary of such Bank Guaranty will not permit same to terminate as
otherwise provided above, (iii) no Bank Guaranty shall have an expiry date
occurring later than the tenth Business Day preceding the CL Maturity Date,
provided, however, that a Bank Guaranty shall not be required to have an expiry
date as otherwise required above if the respective Account Party reasonably
determines that the beneficiary of such Bank Guaranty
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will not accept a Bank Guaranty with an expiry date, (iv) each Bank Guaranty
shall be denominated in Dollars or an Alternative Currency and (v) no Bank
Guaranty Issuer will issue any Bank Guaranty after it has received written
notice from any Credit Agreement Party or the Required Lenders stating that a
Default or an Event of Default exists until such time as such Bank Guaranty
Issuer shall have received a written notice of (x) rescission of such notice
from the party or parties originally delivering the same or (y) a waiver of such
Default or Event of Default by the Required Lenders.
(d) Part B of Schedule XI hereto contains a description of certain
bank guaranties issued (or deemed issued) pursuant to the Original Credit
Agreement and outstanding on the Restatement Effective Date (and setting forth,
with respect to each such bank guaranty, (i) the name of the bank guaranty
issuer, (ii) the face amount (including the currency in which such bank guaranty
is denominated, which shall be Dollars or an Alternative Currency), (iii) the
name of the beneficiary, and (iv) the expiry date (if any)). Each such bank
guaranty, including any extension or renewal thereof (each, as amended from time
to time in accordance with the terms thereof and hereof, an "Existing Bank
Guaranty"), shall constitute either a "Bermuda Borrower Bank Guaranty" or a
"U.S. Borrower Bank Guaranty" (as set forth on Part B of Schedule XI) for all
purposes of this Agreement and issued, for purposes of Section 2B.04(a), on the
Restatement Effective Date. Any Lender hereunder (and any of such Lender's
Affiliates and/or branches) which has issued an Existing Bank Guaranty shall
constitute a "Bank Guaranty Issuer" for all purposes of this Agreement.
2B.02 Minimum Face Amount. The Face Amount of each Bank Guaranty
upon issuance shall be not less than (x) in the case of a Dollar Denominated
Bank Guaranty, $250,000, (y) in the case of a Euro Denominated Bank Guaranty,
E150,000 and (z) in the case of a Sterling Denominated Bank Guaranty, L150,000,
or in each case such lesser amount as is acceptable to the respective Bank
Guaranty Issuer.
2B.03 Bank Guaranty Requests. (a) Whenever an Account Party
desires that a Bank Guaranty be issued for its account, such Account Party shall
give the Administrative Agent (at the appropriate Notice Office) and the
respective Bank Guaranty Issuer at least 3 Business Days' (or such shorter
period as is acceptable to such Bank Guaranty Issuer in any given case) written
notice prior to the proposed date of issuance (which shall be a Business Day).
Each notice shall be in the form of Exhibit C-2 (each, a "Bank Guaranty
Request"), including, without limitation, whether the requested Bank Guaranty
shall constitute a U.S. Borrower Bank Guaranty or a Bermuda Borrower Bank
Guaranty and, by specifying the Available Currency in which the requested Bank
Guaranty is to be denominated. Each Bank Guaranty Request shall include any
other documents as such Bank Guaranty Issuer customarily requires in connection
therewith.
(b) The making of each Bank Guaranty Request shall be deemed to be a
representation and warranty by the U.S. Borrower or the Bermuda Borrower, as the
case may be, that such Bank Guaranty may be issued in accordance with, and will
not violate the requirements of, Section 2B.01(c). Unless the respective Bank
Guaranty Issuer has received notice from the Required Lenders before it issues a
Bank Guaranty that one or more of the applicable conditions specified in Section
5 or 6, as the case may be, are not then satisfied, or that the issuance of such
Bank Guaranty would violate Section 2B.01(c), then such Bank Guaranty Issuer may
issue the
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requested Bank Guaranty for the account of the respective Account Party in
accordance with such Bank Guaranty Issuer's usual and customary practices.
2B.04 Bank Guaranty Participations. (a) Immediately upon the
issuance by any Bank Guaranty Issuer of any Bank Guaranty, but subject to
Section 2C.03 to the extent applicable in the case of Non-Dollar Denominated
Bank Guaranties, such Bank Guaranty Issuer shall be deemed to have sold and
transferred to each CL Lender (each such Lender with respect to any Bank
Guaranty, in its capacity under this Section 2B.04, a "B/G Participant"), and
each such B/G Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Bank Guaranty Issuer, without recourse or
warranty, an undivided interest and participation (each a "B/G Participation"),
in a percentage equal to such B/G Participant's CL Percentage in such Bank
Guaranty, each Bank Guaranty Payment made thereunder and the obligations of the
respective Account Party under this Agreement with respect thereto (although CL
Facility Fees shall be payable directly to the Administrative Agent for the
account of the CL Lenders as provided in Section 3.01(a) and the B/G
Participants shall have no right to receive any portion of any Fronting Fees or
any administration fees with respect to any such Bank Guaranties) and any
security therefor or guaranty pertaining thereto. Upon any change in the
Credit-Linked Commitments and, as a result thereof the CL Percentages, of the CL
Lenders pursuant to Section 1.13 or 13.04, it is hereby agreed that, with
respect to all outstanding Bank Guaranties and Unreimbursed Payments relating
thereto, there shall be an automatic adjustment to the participations pursuant
to this Section 2B.04 to reflect the new CL Percentages of the CL Lenders. With
respect to each Bank Guaranty from time to time outstanding, all calculations of
the percentage participations therein of the various CL Lenders shall be made
from time to time by the Administrative Agent, which calculations shall be
conclusive absent manifest error. Furthermore, upon the occurrence of a Sharing
Event and as more fully set forth in Section 1.14, additional sub-participations
may be required to be granted by the various CL Lenders in their participations
in outstanding Bank Guaranties, in each case in accordance with, and subject to
the provisions of, Section 1.14.
(b) In determining whether to pay under any Bank Guaranty, the
respective Bank Guaranty Issuer shall have no obligation relative to the other
Lenders other than to confirm that any documents required to be delivered under
such Bank Guaranty appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Bank Guaranty.
Any action taken or omitted to be taken by any Bank Guaranty Issuer under or in
connection with any Bank Guaranty issued by it if taken or omitted in the
absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision), shall not create
for such Bank Guaranty Issuer any resulting liability to the respective Account
Party or any Lender.
(c) In the event that any Bank Guaranty Issuer makes any payment or
disbursement under any Bank Guaranty issued by it and the respective Account
Party shall not have reimbursed such amount in full to such Bank Guaranty Issuer
pursuant to Section 2B.05(a) by the date required by said Section 2B.05(a) for
such reimbursement, such Bank Guaranty Issuer shall promptly notify the
Administrative Agent, which shall promptly notify each B/G Participant therein
and the Deposit Bank of such failure, and each CL Lender (including in its
capacity as a B/G Participant) hereby irrevocably authorizes the Deposit Bank
(and the Deposit Bank hereby agrees) to reimburse such Bank Guaranty Issuer for
such amount in Dollars (or, to
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the extent that the respective Unreimbursed Payment is in an Alternative
Currency, in an amount equal to the Dollar Equivalent thereof, as determined by
the Administrative Agent on the date on which such payment or disbursement was
made under the respective Bank Guaranty) solely from such B/G Participant's CL
Percentage of the Credit-Linked Deposits on deposit with the Deposit Bank in the
Credit-Linked Deposit Account, in which case the Total Credit-Linked Commitment
shall be reduced by the amount so applied (with a corresponding reduction in the
Credit-Linked Commitment of each CL Lender equal to such CL Lender's CL
Percentage of such aggregate amount so applied); provided that any portion of
the Unreimbursed Payments with respect to a Non-Dollar Denominated Bank Guaranty
which, because of currency fluctuations, represents amounts in excess of the
Total Credit-Linked Deposits, as more fully described in Section 2C.03, shall
not be reimbursed from Credit-Linked Deposits but shall instead be immediately
repaid by the respective Account Party. Furthermore, if any Specified Default or
any Event of Default then exists, the respective Bank Guaranty Issuer may, with
respect to any payment or disbursement made by it under any Bank Guaranty,
request of the Deposit Bank, in which case each CL Lender hereby irrevocably
authorizes the Deposit Bank (and the Deposit Bank hereby agrees), to reimburse
the Bank Guaranty, solely from such CL Lender's CL Percentage of the
Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account with the
Deposit Bank for any Bank Guaranty Payment made by such Bank Guaranty Issuer
under such Bank Guaranty, as provided in the immediately preceding sentence
(notwithstanding the date of reimbursement of any such Bank Guaranty Payment by
the date required by Section 2B.05(a)), in which case the Total Credit-Linked
Commitment shall be reduced by the amount so applied as otherwise provided in
the immediately preceding sentence, and any amounts actually received pursuant
to Section 2B.05(a) shall be applied to reimburse B/G Participants as provided
in following Section 2B.04(d)
(d) Whenever any Bank Guaranty Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Bank Guaranty Issuer any payments from the B/G Participants
(or from the Deposit Bank on their behalf) pursuant to Section 2B.04(c) above,
such Bank Guaranty Issuer shall, after paying itself any amounts owing to it as
described in Section 2C.03 in the case of payments received with respect to
Non-Dollar Denominated Bank Guaranties, pay (in same day funds in Dollars) to
the Administrative Agent (and the Administrative Agent shall promptly pay (in
same day funds in Dollars) each B/G Participant which has paid its CL Percentage
thereof), an amount equal to such B/G Participant's share (based on the
proportionate aggregate amount funded by such B/G Participant to the aggregate
amount funded by all B/G Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(e) Each Bank Guaranty Issuer shall, promptly after the issuance of,
or amendment or modification to, a Bank Guaranty, give the Administrative Agent
and the respective Account Party written notice of such issuance, amendment or
modification, as the case may be, and such notice shall be accompanied by a copy
of such Bank Guaranty, such amendment or such modification, as the case may be.
Promptly upon receipt of such notice, the Administrative Agent shall notify each
B/G Participant, in writing, of such issuance, amendment or modification and if
any B/G Participant shall so request, the Administrative Agent shall furnish
said B/G Participant with a copy of such Bank Guaranty, such amendment or such
modification, as the case may be.
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(f) Each Bank Guaranty Issuer (other than DBAG) shall deliver to the
Administrative Agent and the Deposit Bank, promptly on the first Business Day of
each week, by facsimile transmission, the aggregate daily Face Amount available
to be drawn under each outstanding Bank Guaranty issued by such Bank Guaranty
Issuer for the previous week.
(g) The obligations of the B/G Participants to make payments to the
Administrative Agent for the account of the respective Bank Guaranty Issuer with
respect to Bank Guaranties issued by it shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
any Credit Party or any of its Subsidiaries may have at any time against a
beneficiary named in a Bank Guaranty, any transferee of any Bank Guaranty
(or any Person for whom any such transferee may be acting), any Agent, any
Lender, any Bank Guaranty Issuer, any B/G Participant, or any other Person,
whether in connection with this Agreement, any Bank Guaranty, the
transactions contemplated herein or any unrelated transactions (including
any underlying transaction between any Credit Party or any of its
Subsidiaries and the beneficiary named in any such Bank Guaranty);
(iii) any draft, certificate or any other document presented under any
Bank Guaranty proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided that the B/G Participants shall not be obligated to reimburse such Bank
Guaranty Issuer for any wrongful payment made by such Bank Guaranty Issuer under
a Bank Guaranty issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such Bank
Guaranty Issuer (as determined by a court of competent jurisdiction in a final
and non-appealable decision). Any action taken or omitted to be taken by any
Bank Guaranty Issuer under or in connection with any Bank Guaranty shall not
create for such Bank Guaranty Issuer any resulting liability to the B/G
Participants or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
2B.05 Agreement to Repay Bank Guaranty Payments. (a) The U.S.
Borrower hereby agrees (in the case of U.S. Borrower Bank Guaranties) and the
Bermuda Borrower hereby agrees (in the case of Bermuda Borrower Bank Guaranties)
to reimburse the respective Bank Guaranty Issuer, by making payment in Dollars
(if the respective Bank Guaranty is denominated in an Alternative Currency, in
an amount equal to the Dollar Equivalent of the
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respective payment or disbursement, as determined by the Administrative Agent on
the date of such payment or disbursement) to the Administrative Agent in
immediately available funds at the Payment Office (or by making the payment
directly to such Bank Guaranty Issuer at such location as may otherwise have
been agreed upon by the respective Account Party and such Bank Guaranty Issuer),
for any payment or disbursement (in the case of any such payment or disbursement
under any Non-Dollar Denominated Bank Guaranty, taking the Dollar Equivalent, as
determined by the Administrative Agent, of the amount of the respective payment
or disbursement on the date upon which the respective payment or disbursement is
made) made by such Bank Guaranty Issuer under any Bank Guaranty issued by it
(each such amount so paid until reimbursed, an "Unreimbursed Payment"), not
later than the third Business Day after the Administrative Agent or the Bank
Guaranty Issuer notifies the respective Account Party of such payment or
disbursement (provided that no such notice shall be required to be given if a
Default or an Event of Default under Section 10.05 shall have occurred and be
continuing, in which case all such Unreimbursed Payments shall be due and
payable immediately without presentment, demand, protest or notice of any kind
(all of which are hereby waived by the respective Account Party)), with interest
on the amount so paid or disbursed by such Bank Guaranty Issuer, to the extent
not reimbursed prior to 1:00 P.M. (New York time), on the date of such payment
or disbursement, from and including the date paid or disbursed to but excluding
the date such Bank Guaranty Issuer is reimbursed by the respective Account Party
therefor at a rate per annum which shall be equal to Base Rate in effect from
time to time plus the Applicable Margin for Tranche B Term Loans maintained as
Base Rate Loans, as in effect from time to time; provided, however, to the
extent such amounts are not reimbursed prior to 1:00 P.M. (New York time) on the
third Business Day following the receipt by an Account Party of notice of such
payment or disbursement (or, if sooner, from the date of occurrence of a Default
or an Event of Default under Section 10.05, interest shall thereafter accrue on
the amounts so paid or disbursed by such Bank Guaranty Issuer (and until
reimbursed by the respective Account Party) at a rate per annum which is 2% in
excess of the rate otherwise applicable to the respective Unreimbursed Payment
as provided above, with all such interest payable pursuant to this Section 2B.05
to be payable on demand. The respective Bank Guaranty Issuer shall give the
respective Account Party prompt notice of each Bank Guaranty Payment under any
Bank Guaranty, provided that the failure to give, or any delay in giving, any
such notice shall in no way affect, impair or diminish the respective Account
Party's obligations under this Agreement. The obligations of the respective
Account Party to repay Unreimbursed Payments as required above shall not be
reduced, or satisfied, in any respect by payments made to the Issuing Lender
with any amounts on deposit in the Credit-Linked Deposit Account or as otherwise
provided in Section 2B.04(c).
(b) The obligations of the U.S. Borrower (with respect to U.S.
Borrower Bank Guaranties) and the Bermuda Borrower (with respect to Bermuda
Borrower Bank Guaranties) under this Section 2B.05 to reimburse the respective
Bank Guaranty Issuer with respect to Unreimbursed Payments (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the respective Account Party may have or have had against any Lender
(including in its capacity as Bank Guaranty Issuer or as B/G Participant),
including, without limitation, any defense based upon the failure of any payment
under a Bank Guaranty (each, a "Bank Guaranty Payment") to conform to the terms
of such Bank Guaranty or any nonapplication or misapplication by the beneficiary
of the proceeds of such Bank Guaranty Payment, the respective Bank Guaranty
Issuer's only obligation to the respective Account Party
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being to confirm that any documents required to be delivered under such Bank
Guaranty appear to have been delivered and that they appear to substantially
comply on their face with requirements of such Bank Guaranty; provided, however,
that no Account Party shall be obligated to reimburse any Bank Guaranty Issuer
for any wrongful payment made by such Bank Guaranty Issuer under a Bank Guaranty
issued by it as a result of deliberate acts or omissions constituting willful
misconduct or gross negligence on the part of such Bank Guaranty Issuer (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). Any action taken or omitted to be taken by any Bank Guaranty Issuer
under or in connection with any Bank Guaranty shall not create for such Bank
Guaranty Issuer any resulting liability to any Account Party unless such action
is taken or admitted to be taken with gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable
decision).
2B.06 Increased Costs. If after the Restatement Effective Date,
the Deposit Bank, any Bank Guaranty Issuer or any B/G Participant determines in
good faith that the adoption or effectiveness after the Restatement Effective
Date of any applicable law, rule or regulation, order, guideline or request or
any change therein, or any change after the Restatement Effective Date in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Deposit Bank, any Bank Guaranty Issuer or any B/G
Participant with any request or directive (whether or not having the force of
law) by any such authority, central bank or comparable agency shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Bank Guaranties issued by such Bank Guaranty Issuer
or such B/G Participant's participation therein, or (ii) impose on the Deposit
Bank, any Bank Guaranty Issuer or any B/G Participant any other conditions
directly or indirectly affecting this Agreement, the Credit-Linked Deposits, any
Bank Guaranty or such B/G Participant's participation therein; and the result of
any of the foregoing is to increase the cost to the Deposit Bank, such Bank
Guaranty Issuer or such B/G Participant of issuing, maintaining or participating
in the Credit-Linked Deposits, any Bank Guaranty, or to reduce the amount of any
sum received or receivable by the Deposit Bank, such Bank Guaranty Issuer or
such B/G Participant hereunder or under the other Credit Documents or reduce the
rate of return on its capital with respect to Bank Guaranties, then, upon
written demand to the U.S. Borrower or the Bermuda Borrower, as the case may be,
by the Deposit Bank, such Bank Guaranty Issuer or such B/G Participant (a copy
of which notice shall be sent by the Deposit Bank, such Bank Guaranty Issuer or
such B/G Participant to the Administrative Agent), accompanied by the
certificate described in the last sentence of this Section 2B.06, the respective
Account Party shall pay to the Deposit Bank, such Bank Guaranty Issuer or such
B/G Participant for such increased cost or reduction. A certificate submitted to
the relevant Account Party by the Deposit Bank, such Bank Guaranty Issuer or
such B/G Participant, as the case may be (a copy of which certificate shall be
sent by the Deposit Bank, such Bank Guaranty Issuer or such B/G Participant to
the Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate the
Deposit Bank, such Bank Guaranty Issuer or such B/G Participant as aforesaid
shall be final and conclusive and binding on such Account Party absent manifest
error, although the failure to deliver any such certificate shall not release or
diminish such Account Party's obligations to pay additional amounts pursuant to
this Section 2B.06 upon subsequent receipt of such certificate.
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2B.07 Cash Collateralization. No later than the date occurring
ten Business Days prior to the CL Maturity Date, the U.S. Borrower or the
Bermuda Borrower, as the case may be, shall either (i) terminate each Bank
Guaranty issued to it without an expiry date (and cause each such terminated
Bank Guaranty to be surrendered for termination to the respective Bank Guaranty
Issuer) or (ii) enter into cash collateral arrangements with each Bank Guaranty
Issuer which shall have issued a Bank Guaranty to it without an expiry date on
terms satisfactory to such Bank Guaranty Issuer and the Administrative Agent,
with the U.S. Borrower or the Bermuda Borrower, as the case may be, depositing
cash and/or Cash Equivalents (in the respective currency or currencies of the
respective Bank Guaranties, and in such amounts as will fully cash collateralize
the maximum future payments that could be made under the respective Bank
Guaranties) pursuant to such cash collateral arrangements to be held as security
for all Bank Guaranty Outstandings of the U.S. Borrower or the Bermuda Borrower,
as the case may be, in respect of such Bank Guaranties. If (and only if) all
actions required above are taken to the satisfaction of the relevant Bank
Guaranty Issuers and the Administrative Agent, the Aggregate CL Exposure
attributable to the Bank Guaranties so fully cash collateralized shall be deemed
to be $0 (including for purposes of Section 2C.04(a); provided that unless and
until such actions are taken the full amount of Bank Guaranty Outstandings
relating thereto shall be included in determining the Aggregate CL Exposure
(including for purposes of Section 2C.04(a)).
Section 2C. Special Provisions.
2C.01 Credit-Linked Deposit Account. (a) On the Restatement
Effective Date and subject to the satisfaction of the conditions precedent set
forth in Sections 5 and 6, each CL Lender on such date shall pay to the Deposit
Bank such CL Lender's Credit-Linked Deposit. The Credit-Linked Deposits shall be
held by the Deposit Bank in (or credited to) the Credit-Linked Deposit Account,
and no Person other than the Deposit Bank shall have a right of withdrawal from
the Credit-Linked Deposit Account or any other right or power with respect to
the Credit-Linked Deposits. Notwithstanding anything herein to the contrary, the
funding obligation of each CL Lender in respect of its participation in CL
Credit Events shall be satisfied in full upon the funding in full of its
Credit-Linked Deposit.
(b) Each of the Deposit Bank, the Administrative Agent, each Issuing
Lender, each Bank Guaranty Issuer and each CL Lender hereby acknowledges and
agrees that (i) each CL Lender is funding its Credit-Linked Deposit to the
Deposit Bank for application in the manner contemplated by Sections 2A.04 and
2B.04, (ii) the Deposit Bank may invest the Credit-Linked Deposits in such
investments as may be determined from time to time by the Deposit Bank and (iii)
the Deposit Bank has agreed to pay to the Administrative Agent, who shall in
turn pay to each CL Lender, a return on its Credit-Linked Deposit (except (x)
during periods when such Credit-Linked Deposits are used to reimburse an Issuing
Lender or a Bank Guaranty Issuer, as the case may be, with respect to payments
and disbursements on Letters of Credit and/or Bank Guaranties or (y) as
otherwise provided in Sections 2C.01(d) and 2C.01(e)) for each CL Lender equal
at any time to the LIBOR Rate for the Interest Period in effect for the
Credit-Linked Deposits at such time less the Credit-Linked Deposit Cost Amount
at such time. Such interest will be paid to the CL Lenders (solely from amounts
received by it from the Deposit Bank) at the LIBOR Rate for an Interest Period
of one month (or at an amount determined in accordance with
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Sections 2C.01(d) or 2C.01(e), as applicable) less, in each case, the
Credit-Linked Deposit Cost Amount in arrears on each CL Interest Payment Date.
(c) The U.S. Borrower, the Bermuda Borrower or any other Credit Party
shall not have (x) any right, title or interest in or to the Credit-Linked
Deposit Account or the Credit-Linked Deposits and/or (y) any obligations with
respect thereto (except to refund portions thereof used to reimburse (I) an
Issuing Lender with respect to payments or disbursements on Letters of Credit as
provided in Section 2A.04 and/or (II) a Bank Guaranty Issuer with respect to
payments or disbursements on Bank Guaranties as provided in Section 2B.04), it
being acknowledged and agreed by the parties hereto that the funding of the
Credit-Linked Deposits by the CL Lenders to the Deposit Bank for deposit in the
Credit-Linked Deposit Account and the application of the Credit-Linked Deposits
in the manner contemplated by Sections 2A.04 and 2B.04 constitute agreements
among the Deposit Bank, the Administrative Agent, each Issuing Lender, each Bank
Guaranty Issuer and each CL Lender with respect to the L/C Participations in the
Letters of Credit and the B/G Participations in the Bank Guaranties and do not
constitute any loan or extension of credit to the U.S. Borrower, the Bermuda
Borrower or any other Credit Party.
(d) If the Deposit Bank is not offering Dollar deposits (in the
applicable amounts) in the applicable Eurodollar interbank market, or the
Deposit Bank determines that adequate and fair means do not otherwise exist for
ascertaining the LIBOR Rate for the Credit-Linked Deposits (or any part
thereof), then the Credit-Linked Deposits (or such parts, as applicable) shall
be invested so as to earn a return equal to the greater of (x) the Federal Funds
Rate and (y) a rate determined by the Deposit Bank in accordance with banking
industry rules on interbank compensation.
(e) If any (x) payment or disbursement under a Letter of Credit that
has been funded by the CL Lenders from the Credit-Linked Deposits as provided in
Section 2A.04(c) or (y) payment or disbursement under a Bank Guaranty that has
been funded by the CL Lenders from the Credit-Linked Deposits as provided in
Section 2B.04(c) shall, in either case, be reimbursed by the applicable Account
Party (or another Person on its behalf) on a day other than on the last day of
an Interest Period or Scheduled Investment Termination Date applicable to the
Credit-Linked Deposits, the Administrative Agent shall, upon receipt thereof,
pay over such amounts to the Deposit Bank which, in turn, will invest the amount
so reimbursed in overnight or short-term cash equivalent investments until the
end of the Interest Period or Scheduled Investment Termination Date at the time
in effect and the respective Account Party shall pay to the Deposit Bank, upon
the Deposit Bank's request therefor (provided that if an Event of Default
specified in Section 10.05 shall occur with respect to either Borrower, the
result which would occur upon the giving of such request by the Deposit Bank
shall occur automatically without the giving of any such request), the amount,
if any, by which the interest accrued on a like amount of the Credit-Linked
Deposits at the LIBOR Rate for the Interest Period in effect therefor shall
exceed the interest earned through the investment of the amount so reimbursed
for the period from the date of such repayment or reimbursement through the end
of the applicable Interest Period, as determined by the Deposit Bank (such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto) and set forth in the request for payment delivered to the
respective Account Party. In the event that the respective Account Party shall
fail to pay any amount due under this Section 2C.01(e), the interest payable by
the Deposit Bank
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to the CL Lenders on their Credit-Linked Deposits under Section 2C.01(b) shall
be correspondingly reduced and the CL Lenders shall, without further act,
succeed, ratably in accordance with their respective CL Percentages, to the
rights of the Deposit Bank with respect to such amount due from the respective
Account Party. All reimbursements of (x) Drawings under Letters of Credit that
have been funded by the CL Lenders from the Credit-Linked Deposits as provided
in Section 2A.04(c) or (y) Bank Guaranty Payments under Bank Guaranties that
have been funded by the CL Lenders from the Credit-Linked Deposits as provided
in Section 2B.04(c), in each case received by the Administrative Agent prior to
the termination of the Total Credit-Linked Commitment, shall be paid over to the
Deposit Bank which will deposit same in the Credit-Linked Deposit Account. The
Account Party shall not have any responsibility or liability to the CL Lenders,
the Administrative Agent, the Issuing Lender or any other Person in respect of
the establishment, maintenance, administration or misappropriation of the
Credit-Linked Deposit Account or with respect to the investment of amounts held
therein; provided, however, that notwithstanding anything to the contrary
contained in this Section 2C.01(e), the Administrative Agent, acting in its
capacity as such, shall be entitled to the indemnities provided elsewhere in
this Agreement.
2C.02 European Monetary Union. The following provisions of this
Section 2C.02 shall come into effect on and from the date on which the United
Kingdom becomes a Participating Member State. Each obligation under this
Agreement which has been denominated in Sterling shall be redenominated into
Euros in accordance with the relevant EMU Legislation. However, if and to the
extent that the relevant EMU Legislation provides that an amount which is
denominated in Sterling can be paid by the debtor either in Euros or in that
national currency unit, each party to this Agreement shall be entitled to pay or
repay any amount denominated or owing in Sterling hereunder either in Euros or
in Sterling. Without prejudice and in addition to any method of conversion or
rounding prescribed by any relevant EMU Legislation, (i) each reference in this
Agreement to a minimum amount (or an integral multiple thereof) in Sterling
shall be replaced by a reference to such reasonably comparable and convenient
amount (or an integral multiple thereof) in Euros as the Administrative Agent
may from time to time specify and (ii) except as expressly provided in this
Section 2C.02, this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
necessary or appropriate to reflect the introduction of or changeover to Euros
in the United Kingdom, provided that this Section 2C.02 shall not reduce or
increase any actual or contingent liability arising under this Agreement.
2C.03 Special Provisions Regarding Non-Dollar Denominated Letters
of Credit and Non-Dollar Denominated Bank Guaranties. As an accommodation to
each of the Account Parties, it is understood and agreed that the respective
Issuing Lenders and Bank Guaranty Issuers may, but shall not be obligated to,
issue from time to time Letters of Credit or Bank Guaranties, as the case may
be, denominated in Alternative Currencies, otherwise in accordance with the
relevant provisions of this Section 2. The respective Issuing Lender or Bank
Guaranty Issuer, as the case may be, may, at any time, in its sole discretion,
determine not to issue Letters of Credit or Bank Guaranties, as the case may be,
denominated in any Alternative Currency. If any Non-Dollar Denominated Letters
of Credit and/or Non-Dollar Denominated Bank Guaranties are from time to time
issued, it is understood that the definitions of Stated Amount (in the case of
Non-Dollar Denominated Letters of Credit) and Face Amount (in the case of
Non-Dollar Denominated Bank Guaranties) contained in this Agreement are each,
respectively,
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designed to provide (pursuant to the proviso thereto) a cushion to reduce the
risk that the sum of (x) the aggregate Unpaid Drawings with respect to the
Letters of Credit and (y) the aggregate Unreimbursed Payments with respect to
the Bank Guaranties would ever exceed the aggregate amount of Credit-Linked
Deposits available to repay same. Nonetheless, it is possible, because of
currency fluctuations, that the sum of the aggregate Letter of Credit
Outstandings and Bank Guaranty Outstandings would exceed the amount of
Credit-Linked Deposits from time to time. If that situation ever occurs at any
time, the U.S. Borrower and/or the Bermuda Borrower, as the case may be, shall
immediately make all payments required pursuant to Section 4.02(a). Furthermore,
if a Drawing occurs under any Non-Dollar Denominated Letter of Credit or a Bank
Guaranty Payment occurs under any Non-Dollar Denominated Bank Guaranty at a time
when the sum of the aggregate Letter of Credit Outstandings and Bank Guaranty
Outstandings exceeds the Total Credit-Linked Deposits as a result of currency
fluctuations after the initial issuance of the respective Non-Dollar Denominated
Letter of Credit and/or Non-Dollar Denominated Bank Guaranty, as the case may
be, then, unless the respective Account Party repays such Drawing and/or Bank
Guaranty Payment (or the portion thereof which represents the excess amounts
described above), (x) the respective Issuing Lender shall bear the risk on that
portion of the Unpaid Drawings with respect to such Non-Dollar Denominated
Letter of Credit which represents the excess of the sum of the aggregate Letter
of Credit Outstandings and Bank Guaranty Outstandings over the amount of
Credit-Linked Deposits (but only to the extent caused by currency fluctuations
after the issuance of the respective Non-Dollar Denominated Letter of Credit)
and (y) the respective Bank Guaranty Issuer shall bear the risk on that portion
of the Bank Guaranty Payments with respect to such Non-Dollar Denominated Bank
Guaranties which represents the excess of the sum of the aggregate Letter of
Credit Outstandings and Bank Guaranty Outstandings over the amount of
Credit-Linked Deposits (but only to the extent caused by currency fluctuations
after the issuance of the respective Non-Dollar Denominated Bank Guaranty), and
any payments received by the Issuing Lender or Bank Guaranty Issuer, as the case
may be, (or others on their respective behalf) with respect to such Unpaid
Drawings (and interest thereon, which shall in any event be payable at the rates
specified in Section 2A.05(a)) and/or Unreimbursed Payments (and interest
thereon, which shall in any event be payable at the rates specified in Section
2B.05(a)), shall be retained by the respective Issuing Lender or Bank Guaranty
Issuer, as the case may be, for its own account. Any amounts owing to an Issuing
Lender or Bank Guaranty Issuer as described above in this Section 2C.03 shall be
entitled to elevated priorities with respect to cash collateral as described in
Section 4.02(a) and the enhanced priorities described in Section 7.4 of the U.S.
Security Agreement.
2C.04 Special Provisions Regarding Return Of Credit-Linked
Deposits. (a) At the time of any termination or reduction of the Total
Credit-Linked Commitment pursuant to Sections 2A.04(c), 2B.04(c), 3.02(b), 3.03
or 10, the Deposit Bank shall return to the Administrative Agent who shall, in
turn, return to the CL Lenders (ratably in accordance with their respective CL
Percentages) their Credit-Linked Deposits (to the extent not theretofore applied
pursuant to Sections 2A.04(c) or 2B.04(c)) in an amount (if any) by which the
aggregate amount of Credit-Linked Deposits at such time exceeds the greater of
(x) the Total Credit-Linked Commitment after giving effect to such reduction or
termination and (y) the Aggregate CL Exposure at such time. If at the time of
any determination pursuant to the immediately preceding sentence the amount
determined pursuant to clause (y) of the preceding sentence exceeded the amount
determined pursuant to clause (x) of the preceding sentence, the Deposit Bank
shall from time to time thereafter, upon the direction of the Administrative
Agent, return to the
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Administrative Agent who shall, in turn, return to the CL Lenders (ratably in
accordance with their CL Percentages) their Credit-Linked Deposits to the extent
that the aggregate amount thereof from time to time exceeds the greater of (x)
the Total Credit-Linked Commitment after giving effect to prior reductions
thereto or terminations thereof and (y) the Aggregate CL Exposure at such time.
(b) If at any time, and for any reason, any Issuing Bank or Bank
Guaranty Issuer is required to return to the respective Account Party (or any
other Person) or otherwise disgorge amounts in respect of payments previously
received by it from (or on behalf of) any Account Party or other Credit Party in
respect of payments theretofore received by the respective Issuing Bank or Bank
Guaranty Issuer in respect of Drawings or Bank Guaranty Payments, as the case
may be, previously made, then the respective Issuing Bank or Bank Guaranty
Issuer shall be entitled to treat the amounts so returned or disgorged as not
having been paid to it (by the respective Account Party or other Credit Party)
for purposes of this Agreement and shall be entitled to reimbursement as
provided in the relevant provisions of Sections 2A or 2B, as the case may be,
and, without limiting the foregoing, to the extent that Credit-Linked Deposits
have previously been returned to the CL Lenders (in accordance with the
provisions of preceding clause (a) or otherwise), the respective Issuing Bank or
Bank Guaranty Issuer shall be entitled to be indemnified by the CL Lenders for
the amount so returned or disgorged (and the CL Lenders hereby agree to so
indemnify the respective Issuing Bank or Bank Guaranty Issuer); provided that no
CL Lender shall be obligated pursuant to this clause (b) to make payments, in
the aggregate, of amounts in excess of the amount of Credit-Linked Deposits
actually returned to it.
Section 3. Fees; Commitments.
3.01 Fees. (a) The Borrowers jointly and severally agree to pay
to the Administrative Agent for distribution to each CL Lender (based on each
such CL Lender's CL Percentage) a fee (the "CL Facility Fee") equal to the sum
of (I) a rate per annum equal to the Applicable Margin for Tranche B Term Loans
maintained as Eurodollar Loans on the Total Credit-Linked Commitment as in
effect from time to time (or, if terminated, on the aggregate amount of the
Credit-Linked Deposits from time to time) and (II) a rate per annum equal to the
Credit-Linked Deposit Cost Amount as in effect from time to time on the amount
of the Total Credit-Linked Commitment as in effect from time to time (or, if
terminated, on the aggregate amount of the Credit-Linked Deposits from time to
time), in each case for the period from and including the Restatement Effective
Date to and including the date on which the Total Credit-Linked Commitment has
been terminated, all remaining Credit-Linked Deposits have been returned to the
CL Lenders or applied to pay amounts owing with respect to Letters of Credit
and/or Bank Guaranties as more fully provided in Sections 2A and 2B hereof, all
Unpaid Drawings and all Unreimbursed Payments (including, in each case, all
accrued and unpaid interest thereon) have been paid in full and all Letters of
Credit and all Bank Guaranties have been terminated. Accrued CL Facility Fees
shall be due and payable quarterly in arrears on each CL Interest Payment Date
and on the first date upon which the Total Credit-Linked Commitment has been
terminated, all remaining Credit-Linked Deposits have been returned to the CL
Lenders or applied to pay amounts owing with respect to Letters of Credit and/or
Bank Guaranties as more fully provided in Sections 2A and 2B hereof, all Unpaid
Drawings and all Unreimbursed Payments (including, in each case, all accrued and
unpaid interest thereon) have been paid in full and all Letters of Credit and
all Bank Guaranties have been terminated.
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(b) Each Account Party agrees to pay to the respective Issuing Lender,
for its own account, in Dollars, a facing fee in respect of each Letter of
Credit issued for its account hereunder (the "Facing Fee") for the period from
and including the date of issuance or renewal of such Letter of Credit to and
including the termination or expiration of such Letter of Credit, computed at a
rate equal to 1/8 of 1% per annum of the daily Stated Amount of such Letter of
Credit; provided that in no event shall the annual Facing Fee with respect to
any Letter of Credit be less than the Minimum Applicable Facing Fee; it being
agreed that (i) on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, if the
Minimum Applicable Facing Fee will exceed the amount of Facing Fees that will
accrue with respect to such Letter of Credit for the immediately succeeding
12-month period, the full Minimum Applicable Facing Fee shall be payable on the
date of issuance of such Letter of Credit and on each such anniversary thereof
prior to the termination of such Letter of Credit and (ii) if on the date of the
termination of any Letter of Credit, the Minimum Applicable Facing Fee actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of
Credit for the period beginning on the date of the issuance thereof (or, if the
respective Letter of Credit has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Letter of Credit) and ending on the date of the termination
thereof, an amount equal to such excess shall be paid as additional Facing Fees
with respect to such Letter of Credit on the next date upon which Facing Fees
are payable in accordance with the immediately succeeding sentence. Except as
provided in the immediately preceding sentence, accrued Facing Fees shall be due
and payable quarterly in arrears on each CL Interest Payment Date and upon the
first day on or after the termination of the Total Credit-Linked Commitment upon
which no Letters of Credit remain outstanding. Notwithstanding anything to the
contrary contained in this Agreement, to the extent that any Account Party has
paid advance facing fees to any Issuing Lender with respect to any Existing
Letter of Credit pursuant to the Original Credit Agreement, there shall be
credited against the Facing Fees due to such Issuing Lender under this Agreement
the amount of such advance facing fees which related to periods after the
Restatement Effective Date.
(c) The respective Account Party agrees to pay to the respective
Issuing Lender, in Dollars, for its own account, upon each payment under,
issuance of, or amendment to, any Letter of Credit, such amount as shall at the
time of such event be the administrative charge which such Issuing Lender is
customarily charging for issuances of, payments under or amendments of, Letters
of Credit issued by it.
(d) Each Account Party agrees to pay to the respective Bank Guaranty
Issuer, for its own account, in Dollars, a fronting fee in respect of each Bank
Guaranty issued to it hereunder (the "Fronting Fee") for the period from and
including the date of issuance or renewal of such Bank Guaranty to and including
the termination or expiration of such Bank Guaranty, computed at a rate equal to
1/8 of 1% per annum of the daily Face Amount of such Bank Guaranty, provided
that in no event shall the annual Fronting Fee with respect to any Bank Guaranty
be less than the Minimum Applicable Fronting Fee; it being agreed that (i) on
the date of issuance of any Bank Guaranty and on each anniversary thereof prior
to the termination of such Bank Guaranty, if the Minimum Applicable Fronting Fee
will exceed the amount of Fronting Fees that will accrue with respect to such
Bank Guaranty for the immediately succeeding 12-month period, the full Minimum
Applicable Fronting Fee shall be payable on the date of issuance of such Bank
Guaranty and on each such anniversary thereof prior to the
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termination of such Bank Guaranty and (ii) if on the date of the termination of
any Bank Guaranty, the Minimum Applicable Fronting Fee actually exceeds the
amount of Fronting Fees paid or payable with respect to such Bank Guaranty for
the period beginning on the date of the issuance thereof (or, if the respective
Bank Guaranty has been outstanding for more than one year, the date of the last
anniversary of the issuance thereof occurring prior to the termination of such
Bank Guaranty) and ending on the date of the termination thereof, an amount
equal to such excess shall be paid as additional Fronting Fees with respect to
such Bank Guaranty on the next date upon which Fronting Fees are payable in
accordance with the immediately succeeding sentence. Except as provided in the
immediately preceding sentence, accrued Fronting Fees shall be due and payable,
quarterly in arrears on each CL Interest Payment Date and upon the first day on
or after the termination of the Total Credit-Linked Commitment upon which no
Bank Guaranties remain outstanding. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that any Account Party has paid
advance fronting fees to any Bank Guaranty Issuer with respect to any Existing
Bank Guaranty pursuant to the Original Credit Agreement, there shall be credited
against the Fronting Fees due to such Bank Guaranty Issuer under this Agreement
the amount of such advance fronting fees which related to periods after the
Restatement Effective Date.
(e) The respective Account Party agrees to pay to the respective Bank
Guaranty Issuer, in Dollars, for its own account, upon each payment under,
issuance of, or amendment to, any Bank Guaranty, such amount as shall at the
time of such event be the administrative charge which such Bank Guaranty Issuer
is customarily charging for issuances of, payments under or amendments of, Bank
Guaranties issued by it.
(f) The Borrowers shall pay to the Administrative Agent for
distribution to each Incremental Term Loan Lender such fees and other amounts,
if any, as are specified in the relevant Incremental Term Loan Commitment
Agreement, with the fees and other amounts, if any, to be payable on the
respective Incremental Term Loan Commitment Date.
(g) Each Borrower agrees to pay to each Agent, for its own account,
such other fees as have been agreed to in writing by such Borrower and the
Agents.
(h) At the time of the consummation of a Repricing Transaction that is
consummated prior to the first anniversary of the Restatement Effective Date,
the respective Borrower agrees to pay to the Administrative Agent, for the
ratable account of each Lender with outstanding Term Loans and/or Credit-Linked
Deposits of any Tranche subject to such Repricing Transaction (including each
Lender that withholds its consent to such Repricing Transaction and is replaced
or is removed as a Lender under Section 1.13 or 4.01(vi), as the case may be), a
fee equal to 1.0% of (x) in the case of a Repricing Transaction of the type
described in clause (1) of the definition thereof, the aggregate principal
amount of all Term Loans and/or Credit-Linked Deposits, as the case may be,
prepaid (or converted) in connection with such Repricing Transaction and (y) in
the case of a Repricing Transaction of the type described in clause (2) of the
definition thereof, the aggregate principal amount of all Term Loans and/or
Credit-Linked Deposits, as the case may be, outstanding on such date that are
subject to an effective pricing reduction pursuant to such Repricing
Transaction. The fees described above in this Section 3.01(h) shall be due and
payable upon the date of the effectiveness of such Repricing Transaction.
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(i) All computations of Fees shall be made in accordance with Section
13.07(b).
3.02 Voluntary Termination or Reduction of Commitments and Adjustments
of Commitments. (a) Upon at least three Business Days' prior notice from an
Authorized Officer of Holdings to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of the
Incremental Term Loan Lenders), Holdings and/or the applicable Incremental Term
Loan Borrower shall have the right, at any time and from time to time, without
premium or penalty, to terminate the Total Incremental Term Loan Commitment at
such time, in whole or in part, in aggregate minimum amounts of at least
$1,000,000 in the case of partial reductions, with the amount of each reduction
pursuant to this Section 3.02(a) to apply proportionately and permanently reduce
the Incremental Term Loan Commitments of each Lender with such a Commitment.
Each reduction to the Total Incremental Term Loan Commitment pursuant to this
Section 3.02(a) shall be applied to reduce the then remaining Incremental Term
Loan Scheduled Repayments of the respective Tranche of Incremental Term Loans on
a pro rata basis (based upon the then remaining principal amount of the
Incremental Term Loan Scheduled Repayments of such Tranche after giving effect
to all prior reductions thereto).
(b) Upon at least three Business Days' prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the CL Lenders), the U.S. Borrower shall have
the right, at any time and from time to time, without premium or penalty, to
terminate the Total Unutilized Credit-Linked Commitment in whole, or reduce it
in part in aggregate minimum amounts of $1,000,000, provided that no such
reduction shall be permitted to be made pursuant to this Section 3.02(b) if the
effect thereof is to cause the Aggregate CL Exposure to exceed the Total
Credit-Linked Commitment after giving effect to the reduction thereto pursuant
to this Section 3.02(b). Each reduction to the Total Credit-Linked Commitment
pursuant to this Section 3.02(b) shall apply to proportionately and permanently
reduce the Credit-Linked Commitment of each CL Lender (based on their respective
CL Percentages). At the time of any termination or reduction of the Total
Credit-Linked Commitment pursuant to this Section 3.02(b), the Administrative
Agent shall request the Deposit Bank to (and the Deposit Bank agrees that it
will) withdraw from the Credit-Linked Deposit Account and to pay same over to
the Administrative Agent, and the Administrative Agent shall return to the CL
Lenders (ratably in accordance with their respective CL Percentages) their
Credit-Linked Deposits in an amount by which the aggregate amount of the
Credit-Linked Deposits at such time exceeds the Total Credit-Linked Commitment
as in effect immediately after giving effect to such termination. Each
termination of all or any portion of the Total Unutilized Credit-Linked
Commitment pursuant to this Section 3.02(b) made prior to the first anniversary
of the Restatement Effective Date in connection with a Repricing Transaction
shall be subject to the payment of the fee described in Section 3.01(h).
(c) In the event of certain refusals by a Lender as provided in
Section 4.01 or 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, Holdings may, subject to the applicable
requirements of said Sections 4.01 and/or 13.12(b), upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the Incremental
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Term Loan Commitments, if any, and/or the Credit-Linked Commitment, if any, of
such Lender, so long as (x) all Loans, Unpaid Drawings and Unreimbursed Payments
(to the extent that such Lender's Credit-Linked Commitment is being terminated),
together with accrued and unpaid interest, Fees and all other amounts, owing to
such Lender (excluding amounts owing in respect of Loans of any Tranche
maintained by such Lender which are not being repaid pursuant to Section
13.12(b)) are repaid concurrently with the effectiveness of such termination (at
which time Schedule I shall be deemed modified to reflect such changed amounts)
and (y) after giving effect to such termination (and the adjustments to the CL
Percentages of the remaining Lenders as contemplated below), the Individual CL
Exposure of any remaining CL Lender shall not exceed its Credit-Linked
Commitment. After giving effect to the termination of the Commitments of any
Lender pursuant to the provisions of this Section 3.02(c), unless the respective
Lender continues to have outstanding Term Loans or other Commitments (if any)
hereunder, such Lender shall no longer constitute a "Lender" for purposes of
this Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 13.01
and 13.06), which shall survive as to such repaid Lender. In cases where the
Credit-Linked Commitments of any Lender are terminated pursuant to this Section
3.02(c), except in cases where the respective Credit-Linked Commitments are
replaced in full, after giving effect to the termination of any such
Credit-Linked Commitments of a given Lender pursuant to this Section 3.02(c),
there shall occur automatic adjustments (as determined by the Administrative
Agent) in the respective CL Percentages of the remaining CL Lenders in
accordance with the definition of CL Percentage contained herein. At the time of
any termination of a CL Lender's Credit-Linked Commitment pursuant to this
Section 3.02(c), the Administrative Agent shall request the Deposit Bank to (and
the Deposit Bank agrees that it will) withdraw from the Credit-Linked Deposit
Account and to pay same over to the Administrative Agent, and the Administrative
Agent shall return to such CL Lender its Credit-Linked Deposit; provided that
if, and to the extent, the respective CL Lender is replaced by way of
assignment, then its Credit-Linked Deposit shall remain in the Credit-Linked
Deposit Account and the respective assignee shall pay the assigning CL Lender an
amount equal to the Credit-Linked Deposit so assigned. Each reduction to the
Total Incremental Term Loan Commitment pursuant to this Section 3.02(c) shall be
applied to reduce the then remaining Incremental Term Loan Scheduled Repayments
of the respective Tranche of Incremental Term Loans on a pro rata basis (based
upon the then remaining principal amount of the Incremental Term Loan Scheduled
Repayments of such Tranche after giving effect to all prior reductions thereto).
(d) In connection with any reduction or termination of the Total
Incremental Term Loan Commitment and/or the Total Credit-Linked Commitment of
any Lender pursuant to this Section 3.02 and Section 3.03, as the case may be,
each of the U.S. Borrower and the Bermuda Borrower hereby irrevocably authorizes
Holdings to take all necessary action, in the name of the U.S. Borrower or the
Bermuda Borrower, as the case may be, as described in this Section 3.02 or
Section 3.03, as the case may be, in order to effect the reduction or
termination of the Total Incremental Term Loan Commitment and/or the Total
Credit-Linked Commitment of such Lender in accordance with the provisions of
this Section 3.02 or Section 3.03, as the case may be.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and
the Tranche B Term Loan Commitment, the Tranche C Term Loan Commitment and the
Credit-
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Linked Commitment of each Lender with such a Commitment) shall terminate in its
entirety on April 12, 2006, unless the Restatement Effective Date has occurred
on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Lender with such a Commitment) shall terminate in
its entirety on the Restatement Effective Date (after giving effect to the
making of Tranche B Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche C Term Loan Commitment (and the Tranche
C Term Loan Commitment of each Lender with such a Commitment) shall terminate in
its entirety on the Restatement Effective Date (after giving effect to the
making of Tranche C Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Credit-Linked Commitment shall be reduced on the
dates, and in the amounts provided in Sections 2A.04(c) and 2B.04(c). At the
time of any termination or reduction of the Total Credit-Linked Commitment
pursuant to Section 2A.04(c), Section 2B.04(c), this Section 3.03 or Section 10,
the actions required by Section 2C.04(a) shall be taken. Each reduction to, or
termination of, the Total Credit-Linked Commitment shall be applied to
proportionately reduce or terminate, as the case may be, the Credit-Linked
Commitment of each CL Lender (in accordance with their respective CL
Percentages).
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Incremental Term Loan Commitment under a given
Tranche shall (i) be permanently reduced on each Incremental Term Loan Borrowing
Date in respect of such Tranche in an amount equal to the aggregate principal
amount of Incremental Term Loans of such Tranche incurred on each such date,
(ii) terminate in its entirety (to the extent not theretofore terminated) on the
Incremental Term Loan Commitment Termination Date for such Tranche of
Incremental Term Loans (after giving effect to any Incremental Term Loans of
such Tranche to be made on such date) and (iii) prior to the termination of the
Total Incremental Term Loan Commitment in respect of such Tranche, be
permanently reduced from time to time to the extent required by Section 4.02.
(f) Each reduction to the Total Tranche B Term Loan Commitment, the
Total Tranche C Term Loan Commitment, the Total Credit-Linked Commitment and the
Total Incremental Term Loan Commitment under a given Tranche pursuant to this
Section 3.03 as provided above (or pursuant to Section 4.02) shall be applied
proportionately to reduce the Tranche B Term Loan Commitment, the Tranche C Term
Loan Commitment, the Total Credit-Linked Commitment or the Incremental Term Loan
Commitment under such Tranche, as the case may be, of each Lender with such a
Commitment.
(g) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on the Restatement Effective Date (and concurrently with
the occurrence thereof) the Total Multicurrency Facility Revolving Loan
Commitment (as defined in the Original Credit Agreement), the Multicurrency
Facility Revolving Loan Commitment (as
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defined in the Original Credit Agreement) of each Original Lender, the Total
Dollar Facility Revolving Loan Commitment (as defined in the Original Credit
Agreement) and the Dollar Facility Revolving Loan Commitment (as defined in the
Original Credit Agreement) of each Original Lender, shall all be terminated in
their entirety.
Section 4. Prepayments; Repayments; Taxes.
4.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay the Loans made to such Borrower, without premium or penalty except as
otherwise provided in this Agreement, and the right to allocate such prepayments
to Loans of a given Tranche, as such Borrower elects, in whole or in part, at
any time and from time to time on the following terms and conditions:
(i) an Authorized Officer of such Borrower shall give the
Administrative Agent at its Notice Office written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay the Loans,
specifying the Tranche or Tranches of the Loans to be prepaid, the Types of
Loans to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, which notice shall be given
by the Authorized Officer of such Borrower (x) prior to 2:00 P.M. (New York
time) at least one Business Day prior to the date of such prepayment in the
case of Loans maintained as Base Rate Loans and (y) prior to 10:00 A.M.
(New York time) at least three Business Days prior to the date of such
prepayment in the case of Eurodollar Loans, which notice shall be promptly
transmitted by the Administrative Agent to each of the Lenders;
(ii) each partial prepayment applied to any Tranche of Loans shall be
in an aggregate principal amount of at least $1,000,000, provided that if
any partial prepayment of Eurodollar Loans made pursuant to any Borrowing
shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, then such Borrowing may not be continued as a Borrowing of
Eurodollar Loans beyond the Interest Period applicable thereto and any
election of an Interest Period with respect thereto given by such Borrower
shall have no force or effect;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, such Borrower shall pay the amounts required
pursuant to Section 1.11(a);
(iv) except as provided in Section 4.01(v) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans made pursuant to such Borrowing;
(v) each prepayment of principal of Loans of a given Tranche pursuant
to this Section 4.01 shall, subject to the immediately succeeding proviso,
be applied to reduce the then remaining Scheduled Repayments of the
respective Tranche of Term Loans on a pro rata basis (based upon the then
remaining principal amounts of the Scheduled Repayments of such Tranche of
Loans after giving effect to all prior reductions thereto);
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provided that repayments of any Tranche of Loans pursuant to Section
4.01(vi) below shall only apply to reduce the then remaining Scheduled
Repayments of such Tranche to the extent the Term Loans so repaid are not
replaced (and are not required to be replaced) pursuant to Section
13.12(b), with any such application to reduce the then remaining Scheduled
Repayments of the respective Tranche in the manner provided above in this
Section 4.01(v), unless otherwise specifically agreed by the Required
Lenders;
(vi) in the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, such Borrower may, upon five Business
Days' written notice by an Authorized Officer of such Borrower to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Lenders), repay all Loans and
pay all accrued and unpaid interest, Fees, and other amounts, in each case
owing by such Borrower to such Lender (or owing by such Borrower to such
Lender with respect to each Tranche which gave rise to the need to obtain
such Lender's individual consent) in accordance with, and subject to the
requirements of, said Section 13.12(b) so long as (A) in the case of the
repayment of Incremental Term Loans of any Lender under a given Tranche,
the Incremental Term Loan Commitment of such Lender under such Tranche (if
any) is terminated concurrently with such repayment pursuant to Section
3.02(c) (at which time Schedule I shall be deemed modified to reflect the
changed Incremental Term Loan Commitments of such Tranche) and (B) the
consents required by Section 13.12(b) in connection with the repayment
pursuant to this clause (vi) have been obtained;
(vii) in the case of any prepayment of Tranche C Term Loans or Bermuda
Borrower Incremental Term Loans by the Bermuda Borrower with the proceeds
of an Investment in the Bermuda Partnership and the prepayment by the
Bermuda Partnership of an intercompany loan to the Bermuda Borrower as
contemplated by Section 9.05(xviii) at any time Tranche B Term Loans or
U.S. Borrower Incremental Term Loans are outstanding, such prepayment shall
be accompanied by a prepayment of Tranche B Term Loans or U.S. Borrower
Incremental Term Loans by the U.S. Borrower in such amount so that the
voluntary prepayments of Term Loans at such time is made on a pro rata
basis (based upon the TL Repayment Percentages of each such Tranche of Term
Loans and the then outstanding principal amounts of each such Tranche of
Term Loans); and
(viii) each prepayment of Loans of any Tranche pursuant to this
Section 4.01 made prior to the first anniversary of the Restatement
Effective Date in connection with a Repricing Transaction shall be subject
to the payment of the fee described in Section 3.01(h).
4.02 Mandatory Repayments and Commitment Reductions. (a) If on any
date the aggregate amount of all Letter of Credit Outstandings and Bank Guaranty
Outstandings exceeds the Total Credit-Linked Commitment as then in effect, the
U.S. Borrower or the Bermuda Borrower (as determined by the U.S. Borrower)
(subject to clause (x) of the proviso to this clause (a)) agrees to pay to the
Administrative Agent at the Payment Office on such date an amount of cash and/or
Cash Equivalents in Dollars equal to such excess, such cash or Cash Equivalents
to be held as security for all Obligations of the respective Borrower
(including,
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without limitation, in the case of the U.S. Borrower pursuant to the Credit
Agreement Party Guaranty) to the Issuing Lenders, Bank Guaranty Issuers and
Lenders relating to Letters of Credit and Bank Guaranties (and reimbursement and
other Obligations relating thereto) hereunder in a cash collateral account to be
established by, and under the sole dominion and control of, the Administrative
Agent; provided that (x) the aggregate amount of cash and/or Cash Equivalents
paid by the Bermuda Borrower to the Administrative Agent under this clause (a)
shall not at any time exceed the sum of the Letter of Credit Outstandings (with
respect to Bermuda Borrower Letters of Credit) and the Bank Guaranty
Outstandings (with respect to Bermuda Borrower Bank Guaranties) at such time and
(y) any such cash and/or Cash Equivalents shall first be applied to repay any
amounts owing to the respective Issuing Lender and Bank Guaranty Issuer as
described in Section 2C.03 hereof.
(b) (i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
U.S. Borrower shall be required to repay that principal amount of Tranche B
Term Loans, to the extent then outstanding, as is set forth opposite such
date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02(g), a "Tranche B Term Loan Scheduled Repayment"):
Tranche B Scheduled Repayment Date Amount
---------------------------------- ------------
Last Business Day of June, 2006 $ 562,500
Last Business Day of September, 2006 $ 562,500
Last Business Day of December, 2006 $ 562,500
Last Business Day of March, 2007 $ 562,500
Last Business Day of June, 2007 $ 562,500
Last Business Day of September, 2007 $ 562,500
Last Business Day of December, 2007 $ 562,500
Last Business Day of March, 2008 $ 562,500
Last Business Day of June, 2008 $ 562,500
Last Business Day of September, 2008 $ 562,500
Last Business Day of December, 2008 $ 562,500
Last Business Day of March, 2009 $ 562,500
Last Business Day of June, 2009 $ 562,500
Last Business Day of September, 2009 $ 562,500
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Last Business Day of December, 2009 $ 562,500
Last Business Day of March, 2010 $ 562,500
Last Business Day of June, 2010 $ 562,500
Last Business Day of September, 2010 $ 562,500
Last Business Day of December, 2010 $ 562,500
Last Business Day of March, 2011 $ 562,500
Last Business Day of June, 2011 $ 562,500
Last Business Day of September, 2011 $ 562,500
Last Business Day of December, 2011 $ 562,500
Last Business Day of March, 2012 $ 562,500
Last Business Day of June, 2012 $ 562,500
Last Business Day of September, 2012 $ 562,500
Last Business Day of December, 2012 $ 562,500
Tranche B/C Term Loan Maturity Date $209,812,500
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Bermuda Borrower shall be required to repay that principal amount of
Tranche C Term Loans, to the extent then outstanding, as is set forth
opposite such date (each such repayment, as the same may be reduced as
provided in Sections 4.01 and 4.02(g), a "Tranche C Term Loan Scheduled
Repayment"):
Tranche C Scheduled Repayment Date Amount
---------------------------------- ------------
Last Business Day of June, 2006 $ 1,875,000
Last Business Day of September, 2006 $ 1,875,000
Last Business Day of December, 2006 $ 1,875,000
Last Business Day of March, 2007 $ 1,875,000
Last Business Day of June, 2007 $ 1,875,000
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Last Business Day of September, 2007 $ 1,875,000
Last Business Day of December, 2007 $ 1,875,000
Last Business Day of March, 2008 $ 1,875,000
Last Business Day of June, 2008 $ 1,875,000
Last Business Day of September, 2008 $ 1,875,000
Last Business Day of December, 2008 $ 1,875,000
Last Business Day of March, 2009 $ 1,875,000
Last Business Day of June, 2009 $ 1,875,000
Last Business Day of September, 2009 $ 1,875,000
Last Business Day of December, 2009 $ 1,875,000
Last Business Day of March, 2010 $ 1,875,000
Last Business Day of June, 2010 $ 1,875,000
Last Business Day of September, 2010 $ 1,875,000
Last Business Day of December, 2010 $ 1,875,000
Last Business Day of March, 2011 $ 1,875,000
Last Business Day of June, 2011 $ 1,875,000
Last Business Day of September, 2011 $ 1,875,000
Last Business Day of December, 2011 $ 1,875,000
Last Business Day of March, 2012 $ 1,875,000
Last Business Day of June, 2012 $ 1,875,000
Last Business Day of September, 2012 $ 1,875,000
Last Business Day of December, 2012 $ 1,875,000
Tranche B/C Term Loan Maturity Date $699,375,000
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, each Incremental Term Loan
Borrower shall be required to
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make, with respect to each Tranche of Incremental Term Loans of such
Incremental Term Loan Borrower, to the extent then outstanding, scheduled
amortization payments of such Tranche of Incremental Term Loans on the
dates and in the principal amounts set forth in the respective Incremental
Term Loan Commitment Agreement (each such repayment, as the same may be
reduced as provided in Sections 3.02, 4.01 and 4.02(g), an "Incremental
Term Loan Scheduled Repayment"); provided that, if any Incremental Term
Loans are incurred which will be added to (and form part of) an existing
Tranche of Term Loans, the amount of the then remaining Scheduled
Repayments of the respective Tranche shall be proportionally increased
(with the aggregate amount of increases to the then remaining Loan
Scheduled Repayments to equal the aggregate principal amount of such new
Incremental Term Loans then being incurred) in accordance with the
requirements of clause (ii) of Section 1.15(c).
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date upon which Holdings or any of the its Subsidiaries
receives Net Sale Proceeds from any Asset Sale (other than the California
Disposition, to the extent the Net Sale Proceeds therefrom received by a
Subsidiary of the U.S. Borrower (exclusive of any portion thereof which is
distributed to a minority shareholder of such Subsidiary in accordance with the
requirements of Section 9.06) are promptly on-loaned to an Affiliate of the U.S.
Borrower in accordance with the requirements of Section 9.05 and 9.07), an
amount equal to 100% of the Net Sale Proceeds from such Asset Sale shall be
applied as a mandatory repayment and/or commitment reduction in accordance with
the requirements of Sections 4.02(g) and (h); provided that (I) Net Sale
Proceeds from any Asset Sale (other than (x) Net Sale Proceeds from any
Contemplated Asset Sale consummated in accordance with the requirements of
Section 9.02(xviii), (y) any Net Sale Proceeds from the sale of any Principal
Property pursuant to Section 9.02(xix) and (z) Net Sale Proceeds from the sale
or other disposition of the Equity Interests of the Unrestricted Wellbeing Joint
Venture pledged pursuant to the U.S. Pledge Agreement) shall not give rise to a
mandatory repayment and/or commitment reduction on such date as otherwise
required above, so long as no Specified Default and no Event of Default exists
at the time such Net Sale Proceeds are received and an Authorized Officer of
Holdings or the U.S. Borrower has delivered a certificate to the Administrative
Agent on or prior to such date stating that such Net Sale Proceeds shall be used
(or contractually committed to be used) to purchase capital assets used or to be
used in a Permitted Business (other than inventory) within 360 days following
the date of receipt of such Net Sale Proceeds from such Asset Sale (which
certificate shall set forth (in reasonable detail) the estimates of the proceeds
to be so expended) and (II) Net Sale Proceeds from one (but not more than one)
sale of a Principal Property consummated after the Restatement Effective Date in
reliance on Section 9.02(xix) and notified in writing to the Administrative
Agent shall not give rise to a mandatory repayment and/or commitment reduction
on such date as otherwise required above, so long as no Specified Default and no
Event of Default exists at the time such Net Sale Proceeds are received and an
Authorized Officer of Holdings or the U.S. Borrower has delivered a certificate
to the Administrative Agent on or prior to such date stating that such Net Sale
Proceeds shall be used (or contractually committed to be used) to purchase,
construct and/or make investments in a new Principal Property (or assets and
properties that upon completion of such purchase, construction and/or
investments will become a Principal Property) within 360 days following the date
of receipt of such Net Sale Proceeds from such sale of such Principal Property
(which certificate shall set forth the estimates of the proceeds to be so
expended); provided, however, that (I) if all
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or any portion of such Net Sale Proceeds are not so used within such 360-day
period (or contractually committed within such period to be used), such
remaining portion shall be applied on the last day of such period as a mandatory
repayment as provided above (without giving effect to the immediately preceding
proviso) and (II) if all or any portion of such Net Sale Proceeds are not
required to be applied on the last day of such 360-day period referred to in
clause (I) of this proviso because such amount is contractually committed within
such period to be used and then either (A) subsequent to such date such contract
is terminated or expires without such portion being so used or (B) such
contractually committed portion is not so used within six months after the last
day of such 360-day period referred to in clause (I) of this proviso, such
remaining portion, in the case of either of the preceding clauses (A) or (B),
shall be applied as a mandatory repayment as provided above (without giving
effect to the immediately preceding proviso). Notwithstanding anything to the
contrary contained in this Section 4.02(c), (x) if any Permitted Senior Notes
Document (after the execution and delivery thereof), any Permitted Refinancing
Senior Notes Document (after the execution and delivery thereof), the
Intermediate Holdco Credit Documents or the Existing Senior Notes Documents
permit a lesser amount to be retained or reinvested, or have a shorter
reinvestment period, than is provided above with respect to any Asset Sales,
then such lesser permitted retained or reinvestment amount, and/or shorter
reinvestment period, as the case may be, shall be applicable for purposes of
this Section 4.02(c) so long as such Permitted Senior Notes, Permitted
Refinancing Senior Notes, Intermediate Holdco Indebtedness or Existing Senior
Notes, as the case may be, remain outstanding, and (y) in no event shall
Holdings or any of its Subsidiaries use any proceeds from any Asset Sale to make
any voluntary or mandatory repayment or prepayment of Permitted Senior Notes,
Permitted Refinancing Senior Notes, Intermediate Holdco Indebtedness or Existing
Senior Notes and, before any such obligation to use such proceeds to make such
repayment shall arise, Holdings or the respective Subsidiary shall reinvest the
respective amounts as permitted above in this Section 4.02(c) or apply such
proceeds as a mandatory prepayment in accordance with requirements of Sections
4.02(g) and (h).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the
Restatement Effective Date on which Holdings or any of its Subsidiaries receives
any cash proceeds from any incurrence of Indebtedness (other than Indebtedness
permitted to be incurred pursuant to Section 9.04 as in effect on the
Restatement Effective Date), an amount equal to 100% of the Net Cash Proceeds of
the respective incurrence of Indebtedness shall be applied as a mandatory
repayment in accordance with the requirements of Sections 4.02(g) and (h).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Restatement Effective Date on which Holdings or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than proceeds
from Recovery Events in an amount less than $5,000,000 per Recovery Event), an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs (including, without limitation, legal costs and expenses) and taxes
incurred in connection with such Recovery Event and the amount of such proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by the respective assets
subject to such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(g) and
(h); provided that so long as no Specified Default and no Event of Default
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then exists, such proceeds shall not be required to be so applied on such date
to the extent that an Authorized Officer of Holdings or the U.S. Borrower has
delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used (or contractually committed to be used)
within 360 days following the date of receipt of such proceeds from such
Recovery Event to replace or restore any properties or assets in respect of
which such proceeds were paid (which certificate shall set forth the estimates
of the proceeds to be so expended), and provided, further, that (I) if all or
any portion of such proceeds are not so used (or contractually committed to be
used) within such 360-day period, such remaining portion shall be applied as a
mandatory repayment and/or commitment reduction as provided above (without
giving effect to the immediately preceding proviso) and (II) if all or any
portion of such proceeds are not required to be applied on the last day of such
360-day period referred to in clause (I) of this proviso because such amount is
contractually committed to be used and then either (A) subsequent to such date
such contract is terminated or expires without such portion being so used or (B)
such contractually committed portion is not so used within six months after the
last day of such 360-day period referred to in clause (I) of this proviso, such
remaining portion, in the case of either of the preceding clauses (A) or (B),
shall be applied as a mandatory repayment and/or commitment reduction as
provided above (without giving effect to the immediately preceding proviso).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each Excess Cash Payment Date, an
amount equal to the remainder (if positive) of (x) the Applicable Prepayment
Percentage of the Excess Cash Flow for the relevant Excess Cash Flow Payment
Period minus (y) the aggregate amount of principal repayments of Loans (and
Original Loans to the extent (and only to the extent) that such repayments were
made as a voluntary prepayment pursuant to Section 4.01 hereof (or the Original
Credit Agreement, as applicable) with internally generated funds during the
relevant Excess Cash Flow Payment Period, shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(g) and (h).
(g) (I) Each amount required to be applied pursuant to Sections
4.02(c), (d), (e), and (f) in accordance with this Section 4.02(g) shall be
applied, subject to immediately succeeding clause (IV), (i) first, to repay the
outstanding principal amount of Term Loans and (ii) second, to the extent in
excess of the amounts applied pursuant to preceding clause (i), as a mandatory
reduction to the Total Incremental Term Loan Commitment in effect at such time
(if any).
(II) Each amount required to be applied to repay outstanding Term
Loans pursuant to this Section 4.02(g) shall, subject to succeeding clause (IV)
and the immediately succeeding proviso, be applied pro rata to each Tranche of
Term Loans (based upon the TL Repayment Percentages of the various Tranches of
Term Loans and the then outstanding principal amounts of the respective Tranches
of Term Loans); provided that (i) the Net Sale Proceeds from any Asset Sale
effected by Holdings or any of its Domestic Subsidiaries and proceeds from any
Recovery Event with respect to the properties or assets of Holdings or any of
its Domestic Subsidiaries and, in each case, required to be applied to the
repayment of Term Loans pursuant to clause (I) of this Section 4.02(g), shall be
applied (x) first, to repay principal of outstanding Tranche B Term Loans and
U.S. Borrower Incremental Term Loans, if any (on a pro rata basis to each
Tranche of U.S. Borrower Term Loans based on the TL Repayment
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Percentages of such Tranches of U.S. Borrower Term Loans and the then
outstanding principal amount of the Tranche B Term Loans and each such Tranche
of U.S. Borrower Incremental Term Loans (but, for such purposes, as if no
Bermuda Borrower Term Loans were then outstanding)) and (y) second, after the
repayment in full of all outstanding U.S. Borrower Term Loans, to repay
principal of outstanding Tranche C Term Loans and Bermuda Borrower Incremental
Term Loans (on a pro rata basis to each such Tranche of Term Loans, based upon
the TL Repayment Percentages of such Tranches of Term Loans and the then
outstanding principal amounts of such Tranches of Term Loans) and (ii) the Net
Sale Proceeds from any Asset Sale effected by any Foreign Subsidiary of Holdings
and the proceeds from any Recovery Event with respect to the properties or
assets of any Foreign Subsidiary of Holdings and, in each case, required to be
applied to the repayment of Term Loans pursuant to clause (I) of this Section
4.02(g), shall be applied (x) first, to repay principal of outstanding Tranche C
Term Loans and Bermuda Borrower Incremental Term Loans (on a pro rata basis to
each such Tranche of Term Loans, based upon the TL Repayment Percentages of such
Tranches of Term Loans and the then outstanding principal amounts of such
Tranches of Term Loans (but, for such purposes, as if no U.S. Borrower Term
Loans were then outstanding)) and (y) second, after the repayment in full of all
outstanding Bermuda Borrower Term Loans, to repay principal of outstanding
Tranche B Term Loans and U.S. Borrower Incremental Term Loans, if any (on a pro
rata basis to each Tranche of U.S. Borrower Term Loans based on the TL Repayment
Percentages of such Tranches of U.S. Borrower Term Loans and the then
outstanding principal amount of such Tranches of U.S. Borrower Term Loans).
(III) All repayments or commitment reductions, as the case may be, of
outstanding Term Loans or Incremental Term Loan Commitments of a given Tranche,
as the case may be, pursuant to Section 4.02(c), (d), (e) or (f) shall be
applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans on a pro rata basis (based upon the then remaining
principal amounts of the Scheduled Repayments of such Tranche of Term Loans
after giving effect to all prior reductions thereto); provided that if
Incremental Term Loan Commitments of a given Tranche are not included as part of
the Incremental Term Loan Scheduled Repayments for such Tranche set forth in the
respective Incremental Term Loan Commitment Agreement (e.g., because the
Incremental Term Loan Scheduled Repayments are set forth on a percentage basis
rather in a Dollar amount), no such reduction to the respective Incremental Term
Loan Scheduled Repayments shall be required as a result of a reduction in the
Incremental Term Loan Commitments of such Tranche.
(IV) Notwithstanding anything to the contrary in this Section 4.02,
neither Holdings nor any of its Subsidiaries shall be obligated to apply any Net
Sale Proceeds pursuant to this Section 4.02(g) to the extent attributable to any
Asset Sales of ABL Priority Collateral (including, in the case of an Asset Sale
consisting of the sale of all or substantially all of the capital stock or
equity interests in, any U.S. Credit Party, that portion of the proceeds
determined in good faith by Holdings to be attributable to the ABL Priority
Collateral owned by such U.S. Credit Party at the time of the consummation of
such Asset Sale) to the extent that such Net Sale Proceeds are required to be
and are applied to the repayment of ABL Loans (or to the permanent reduction of
any commitment under the ABL Credit Agreement) in accordance with the terms of
the ABL Credit Agreement.
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(h) With respect to each repayment of Loans required by this Section
4.02, the respective Borrower may (subject to the requirements of preceding
Section 4.02(g)) designate the Types of Loans of the respective Tranche which
are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which made, provided that: (i)
in the case of repayments of Eurodollar Loans pursuant to this Section 4.02 on
any day other than the last day of an Interest Period applicable thereto, such
repayments shall be accompanied by payment by the respective Borrower of all
amounts owing in connection therewith pursuant to Section 1.11(a), (ii) if any
repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount applicable to the Eurodollar Loans, such
Borrowing, shall be converted at the end of the then current Interest Period
into a Borrowing of Base Rate Loans, and (iii) each repayment of any Tranche of
Loans made pursuant to a Borrowing shall be applied pro rata among such Tranche
of Loans. In the absence of a designation by the respective Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11(a).
(i) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all other then outstanding Loans shall be repaid in full on
the respective Maturity Date for such Loans and (ii) unless the Required Lenders
shall otherwise agree in writing in their sole discretion, all outstanding Loans
shall be repaid in full upon the occurrence of a Change of Control.
(j) For purposes of clarity, it is understood and agreed that none of
Sections 4.02(c) through (f), inclusive, shall require that amounts received by
any Foreign Subsidiary or Foreign Subsidiaries be used to repay Obligations owed
by any U.S. Credit Parties, but that said Sections merely determine the amounts
required to be applied by the various Borrowers to the repayment of their
Obligations as more fully described in this Section 4.02.
(k) In addition to the mandatory repayments required above, on the
Restatement Effective Date the Borrowers shall make all repayments required
pursuant to Section 4.02(a) of the Original Credit Agreement as a result of the
termination of the Total Multicurrency Facility Revolving Loan Commitment (as
defined in the Original Credit Agreement) and the termination of the Total
Dollar Facility Revolving Loan Commitment (as defined in the Original Credit
Agreement), as provided in Section 3.03(g) hereof; provided that no cash
collateralization shall be required with respect to any Existing Letter of
Credit or Existing Bank Guaranty, each as defined herein. Also on the
Restatement Effective Date, the Borrowers shall cause all Letters of Credit
(other than Existing Letters of Credit as defined herein) and Bank Guaranties
(other than Existing Bank Guaranties as defined herein) under, and as defined
in, the Original Credit Agreement to be terminated and returned to the
respective Issuing Lender (as defined in the Original Credit Agreement) or Bank
Guaranty Issuer (as defined in the Original Credit Agreement). On the
Restatement Effective Date, the respective Borrowers shall also be obligated to
pay to the Original Lenders any breakage or other costs of the type referred to
in Section 1.11 of the Original Credit Agreement (if any) incurred in connection
with the repayments required above.
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(l) In addition to the mandatory repayments required above, on the
Restatement Effective Date the Borrower shall repay in full all outstanding
Tranche A Term Loans under, and as defined in, the Original Credit Agreement. On
the Restatement Effective Date, the Bermuda Borrower shall also be obligated to
pay to the respective Original Lenders any breakage or other costs of the type
referred to in Section 1.11 of the Original Credit Agreement (if any) incurred
in connection with the repayments required above.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 2:00 P.M. (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will thereafter cause to be
distributed on the same day (if payment was actually received by the
Administrative Agent prior to 2:00 P.M. (New York time) like funds relating to
payment of principal, interest or Fees ratably to the Lenders entitled thereto.
Any payments under this Agreement which are made later than 2:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable at the applicable rate during such
extension.
4.04 Net Payments. (a) All payments made by any Credit Party under any
Credit Document (including, in the case of a Credit Agreement Party, in its
capacity as a guarantor pursuant to Section 14) or under any Note will be made
without setoff, counterclaim or other defense. Except as provided in Section
4.04(b), all such payments will be made free and clear of, and without deduction
or withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax imposed on or measured by the net income of
a Lender pursuant to the laws of the jurisdiction in which it is organized or
the jurisdiction in which the principal office or applicable lending office of
such Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed, the
respective Borrower (and any other Credit Party making the payment) agrees to
pay the full amount of such Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement or under
any Note, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein or in such Note. If any amounts
are payable in respect of Taxes pursuant to the preceding sentence, then the
respective Borrower (and any other Credit Party making the payment) shall be
obligated to reimburse each Lender, upon the written request of such Lender, for
the net additional taxes (after taking into account available credits with
respect to such withholding taxes) imposed on or measured by the net income of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which such Lender is organized or in which
the principal office or applicable lending office of such Lender is located and
for any withholding of
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taxes as such Lender shall determine are payable by, or withheld from, such
Lender in respect of such amounts so paid to or on behalf of such Lender
pursuant to the preceding sentence and in respect of any amounts paid to or on
behalf of such Lender pursuant to this sentence, the respective Borrower (or
Credit Party) will furnish to the Administrative Agent within 45 days after the
date of the payment of any Taxes due pursuant to applicable law certified copies
of tax receipts evidencing such payment by such Borrower (or the respective
other Credit Party). The Credit Agreement Parties jointly and severally agree
(and each Subsidiary Guarantor pursuant to its respective Subsidiary Guaranty,
and the incorporation by reference therein of the provisions of this Section
4.04, shall agree) to indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the U.S.
Borrower and the Administrative Agent on or prior to the Restatement Effective
Date, or in the case of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement and
under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit D (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio
interest exemption) (or successor form) certifying to such Lender's entitlement
as of such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender agrees that from time to time after the
Restatement Effective Date, when a lapse in time or change in circumstances
renders the previous certification obsolete or inaccurate in any material
respect, it will deliver to the U.S. Borrower and the Administrative Agent two
new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the U.S. Borrower and the Administrative Agent of its inability to
deliver any such Form or Certificate, in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a),
but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
U.S. Borrower shall be entitled, to the extent it is required to do so by law,
to deduct or withhold income or similar taxes imposed by the United States (or
any political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable by the U.S. Borrower hereunder for the account of
any Lender which is not a United
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States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes to the extent that such Lender has not provided
to the U.S. Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the U.S. Borrower
shall not be obligated pursuant to Section 4.04(a) hereof to gross-up payments
to be made to a Lender in respect of income or similar taxes imposed by the
United States if (I) such Lender has not provided to the U.S. Borrower the
Internal Revenue Service Forms required to be provided to the U.S. Borrower
pursuant to this Section 4.04(b) or (II) in the case of a payment, other than
interest, to a Lender described in clause (ii) above, to the extent that such
forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.04 and except as set forth in Section 13.04(b), the
U.S. Borrower agrees to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence
(x) as a result of any changes after the Restatement Effective Date (or, if
later, the date such Lender became party to this Agreement) in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar taxes or (y) as a result of the purchase of a participation as required
by Section 1.14 following the occurrence of a Sharing Event.
Section 5. Conditions Precedent to Credit Events on the Restatement
Effective Date. The occurrence of the Restatement Effective Date and the
obligation of each Lender to make Loans hereunder (including by way of the
conversion of Original Tranche B Term Loans on the Restatement Effective Date as
contemplated by Section 1.01(b)), the obligation of each CL Lender to fund its
Credit-Linked Deposit, the obligation of each Issuing Lender to issue Letters of
Credit (including any Existing Letters of Credit deemed issued on the
Restatement Effective Date as contemplated by Section 2A.01(d)), and the
obligation of each Bank Guaranty Issuer to issue each Bank Guaranty hereunder
(including any Existing Bank Guaranties deemed issued on the Restatement
Effective Date as contemplated by Section 2B.01(d)), in each case on the
Restatement Effective Date, is subject at the time of the occurrence of the
Restatement Effective Date to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Restatement
Effective Date, (i) this Agreement shall have been executed and delivered as
provided in Section 13.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Lender which has requested the same
the appropriate Tranche B Term Note and Tranche C Term Note, in each case
executed by the relevant Borrower and in the amount, maturity and as otherwise
provided herein.
5.02 Officer's Certificate. On the Restatement Effective Date, the
Administrative Agent shall have received a certificate from the U.S. Borrower,
dated such date and signed by an Authorized Officer of the U.S. Borrower,
certifying that all of the applicable conditions set forth in Sections 5.05
through 5.09, inclusive, Section 5.13 and Section 6 (other than such conditions
that are expressly subject to the satisfaction of the Agents and/or the Required
Lenders), have been satisfied on such date.
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5.03 Opinions of Counsel. On the Restatement Effective Date, the
Administrative Agent shall have received (i) from Paul, Hastings, ββββββββ &
ββββββ LLP, special counsel to the Credit Parties, an opinion addressed to each
Agent, the Collateral Agent and each of the Lenders and dated the Restatement
Effective Date substantially in the form of Exhibit E-1, (ii) from βββββββ,
ββββββββ ββββββ, special Bermuda counsel to the Credit Parties organized under
the laws of Bermuda, an opinion addressed to each Agent, the Collateral Agent
and each of the Lenders and dated the Restatement Effective Date substantially
in the form of Exhibit E-2, and (iii) if requested by the Agents from foreign
counsel to the Credit Parties and/or the Agents in each Qualified Non-U.S.
Jurisdiction and the Philippines, in each case reasonably satisfactory to the
Agents, opinions which shall (x) be addressed to each Agent, the Collateral
Agent and each of the Lenders and be dated the Restatement Effective Date, (y)
cover various matters regarding the execution, delivery and performance of the
Credit Documents to which Subsidiaries of Holdings organized in the relevant
such jurisdiction are party, the perfection and priority of security interests
granted by Credit Parties organized in such jurisdiction or granted in respect
of entities organized in such jurisdiction, and/or such other matters incident
to the transactions contemplated herein as the Agents may reasonably request and
(z) be in form, scope and substance reasonably satisfactory to the Agents.
5.04 Company Documents; Proceedings. (a) On the Restatement Effective
Date, the Administrative Agent shall have received from (i) each New U.S. Credit
Party a certificate, dated the Restatement Effective Date, signed by the
chairman, a vice-chairman, the president or any vice-president of such New U.S.
Credit Party, and attested to by the secretary, any assistant secretary or other
senior officer of such New U.S. Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate of
incorporation, by-laws or equivalent organizational documents of such New U.S.
Credit Party and the resolutions of such New U.S. Credit Party referred to in
such certificate and (ii) the U.S. Borrower a certificate, dated the Restatement
Effective Date, attaching copies of the certificates of incorporation, by-laws
or equivalent organizational documents of each Foreign Subsidiary of Holdings
(x) which is a New Foreign Subsidiary Guarantor or (y) in respect of which
security interests are being (or have been) granted by a New Foreign Subsidiary
Guarantor, and all of the foregoing (including each such certificate of
incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
(b) On the Restatement Effective Date, the Administrative Agent shall
have received a certificate from each Credit Agreement Party and each U.S.
Subsidiary Guarantor (other than the New U.S. Credit Parties) (x) certifying
that there were no changes, or providing the text of any changes, to the
certificate of incorporation, by-laws or equivalent organizational documents of
such Credit Agreement Party or such U.S. Subsidiary Guarantor as delivered
pursuant to Section 5.04 of the Original Credit Agreement (and, in the case of
the certificate from the U.S. Borrower, of each Foreign Subsidiary Guarantor
(other than a New Foreign Subsidiary Guarantor) as delivered pursuant to Section
5.04 of the Original Credit Agreement), and (y) providing the resolutions
adopted by such Credit Agreement Party or such U.S. Subsidiary Guarantor (and,
in the case of the certificate from the U.S. Borrower, each Foreign Subsidiary
Guarantor specifically requested by the Administrative Agent based on advice of
local counsel) with respect to the actions contemplated by this Agreement, and
all of the foregoing shall be acceptable to the Administrative Agent.
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(c) On the Restatement Effective Date, all Company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Agents, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates,
bring-down certificates and any other records of Company proceedings and
governmental approvals, if any, which the Agents reasonably may have requested
in connection therewith, such documents and papers, where appropriate, to be
certified by proper Company or governmental authorities.
(d) On the Restatement Effective Date and after giving effect to the
Transaction, the capital structure (including, without limitation, the terms of
any capital stock, options, warrants or other securities issued by Holdings and
its Subsidiaries) and management of Holdings, the U.S. Borrower and their
respective Subsidiaries shall be in form and substance reasonably satisfactory
to the Agents.
5.05 Adverse Change, etc. On the Restatement Effective Date, nothing
shall have occurred since December 31, 2005 (and the Agents and Lenders shall
have become aware of no facts, conditions or other information not previously
known) which any Agent or the Required Lenders shall reasonably determine has
had, or could reasonably be likely to have, individually or in the aggregate,
(i) a Material Adverse Effect or (ii) material adverse effect on the
Transaction.
5.06 Litigation. On the Restatement Effective Date, there shall be no
actions, suits, proceedings or investigations pending or threatened (a) with
respect to the Transaction or any documentation executed in connection therewith
(including any Credit Document) or the transactions contemplated hereby and
thereby, (b) with respect to any Existing Indebtedness or (c) which any Agent or
the Required Lenders shall determine has had, or could reasonably be expected to
have, individually or in the aggregate, (i) a Material Adverse Effect or (ii) a
material adverse effect on the Transaction.
5.07 Approvals. On or prior to the Restatement Effective Date, (i) all
necessary governmental (domestic and foreign), regulatory and third party
approvals and/or consents in connection with any Existing Indebtedness, the
Transaction, the transactions contemplated by the Documents and otherwise
referred to herein or therein shall have been obtained and remain in full force
and effect as of the Restatement Effective Date and evidence thereof shall have
been provided to the Administrative Agent, and (ii) all applicable waiting
periods shall have expired without any action being taken by any competent
authority which restrains, prevents or imposes materially adverse conditions
upon the consummation of the Transaction, the making of the Loans and the
transactions contemplated by the Documents or otherwise referred to herein or
therein. Additionally, there shall not exist any judgment, order, injunction or
other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon, or materially delaying, or making economically unfeasible, the
consummation of the Transaction or the making of the Loans or the other
transactions contemplated by the Documents or otherwise referred to herein or
therein.
5.08 Refinancing; Original Credit Agreement; etc. (a) On the
Restatement Effective Date (and concurrently with the Credit Events occurring on
such date), Intermediate
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Holdco shall have (i) prepaid all of the outstanding Intermediate Holdco
Indebtedness (other than indemnities not then due and payable) (including,
without limitation, the call or other premiums payable in connection therewith
and all accrued and unpaid interest thereon up to and including the Intermediate
Holdco Prepayment Date) in accordance with, and pursuant to, the terms of the
Intermediate Holdco Credit Agreement and the other Intermediate Holdco Credit
Documents (and shall have obtained all necessary amendments or waivers required
thereunder to give effect to the foregoing, on terms satisfactory to the
Administrative Agent) or (ii) (A) submitted to the Agent (as defined in the
Intermediate Holdco Credit Agreement) an irrevocable notice of prepayment (the
"Intermediate Holdco Irrevocable Prepayment Notice") of all of the outstanding
Intermediate Holdco Indebtedness (other than customary indemnities) pursuant to,
and in accordance with, the terms of the Intermediate Holdco Credit Agreement
(including, without limitation, Section 4.01 thereof) and the other Intermediate
Holdco Credit Documents (with a copy of such notice to the Administrative Agent
and the Intermediate Holdco Paying Agent (as defined below)) specifying that
such prepayment shall occur on a fixed date (which shall be a Business Day) no
later than on the 35th day following the mailing of such Intermediate Holdco
Irrevocable Prepayment Notice (the "Intermediate Holdco Prepayment Date"), (B)
deposited with DBAG, as paying agent (in such capacity, and including any
successor appointed pursuant to Section 12.10, the "Intermediate Holdco Paying
Agent"), amounts borrowed under the ABL Credit Agreement and this Agreement
sufficient to, and for the exclusive purpose, of prepaying all of the
outstanding Intermediate Holdco Indebtedness on the Intermediate Holdco
Prepayment Date (including, without limitation, the call or other premiums
payable in connection therewith and all accrued and unpaid interest thereon up
to and including the Intermediate Holdco Prepayment Date) in accordance with,
and pursuant to, the terms of the Intermediate Holdco Credit Documents
(collectively, the "Intermediate Holdco Prepayment Funds"), on terms and
pursuant to escrow arrangements reasonably satisfactory to the Administrative
Agent and (C) concurrently with the deposit of the Intermediate Holdco
Prepayment Funds, deliver to the Intermediate Holdco Paying Agent (with a copy
to the Administrative Agent), a written irrevocable letter of instruction (in
form and substance reasonably satisfactory to the Administrative Agent),
executed by Intermediate Holdco and Corporate Holdco, directing the Intermediate
Holdco Paying Agent to (I) hold the Intermediate Holdco Prepayment Funds in
escrow until the Intermediate Holdco Prepayment Date and (II) release, disburse
and apply the Intermediate Holdco Prepayment Funds on the Intermediate Holdco
Prepayment Date, in accordance with the Intermediate Holdco Credit Agreement for
the exclusive purpose of prepaying all of the outstanding Intermediate Holdco
Indebtedness on such date (the foregoing, collectively, the "Intermediate Holdco
Refinancing"). On the Restatement Effective Date, (x) the Administrative Agent
shall have received true and correct copies of all Refinancing Documents
relating to the Intermediate Holdco Refinancing, certified as such by an
appropriate officer of the U.S. Borrower and (y) all terms and conditions of the
Intermediate Holdco Refinancing and the Refinancing Documents governing the same
shall be reasonably satisfactory to the Agents.
(b) On the Restatement Effective Date (and concurrently with the
Credit Events occurring on such date), the parties thereto shall have entered
into the ABL Credit Agreement and the initial borrowing shall have occurred
thereunder.
(c) On the Restatement Effective Date (and concurrently with the
Credit Events occurring on such date), and without duplication of amounts
required to be paid, (i) the
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relevant Borrowers shall have made all payments required by the last paragraph
of Section 1.01(b) hereof and clauses (k) and (l) of Section 4.02 hereof, (ii)
the principal of all outstanding Original Loans (other than the Original Tranche
B Loans being converted into Converted Tranche C Term Loans on the Restatement
Effective Date pursuant to Section 1.01(b)) shall be repaid in full, (iii) all
accrued interest on all outstanding extensions of credit pursuant to the
Original Credit Agreement, and all regularly accruing fees pursuant to the
Original Credit Agreement, shall be paid in full on, and through, the
Restatement Effective Date (whether or not same would otherwise then be due and
payable pursuant to the Original Credit Agreement) and (iv) the Borrowers shall
have paid all other amounts then due and payable to any Original Lenders or any
agent pursuant to the terms of the Original Credit Agreement.
5.09 Outstanding Indebtedness and Preferred Equity. On the Restatement
Effective Date and after giving effect to the consummation of the Transaction
(including the Intermediate Holdco Prepayment Consummation as if the same had
occurred on such date), Holdings and its Subsidiaries shall have no outstanding
Preferred Equity or Indebtedness, except for (i) Indebtedness pursuant to or in
respect of the Credit Documents, (ii) Indebtedness pursuant to or in respect of
the Existing Senior Notes Documents in an aggregate outstanding principal amount
not to exceed $1,125,000,000, (iii) intercompany Indebtedness incurred by the
Bermuda Borrower pursuant to the Intercompany Distribution Transactions, (iv)
Intercompany Scheduled Existing Indebtedness (it being understood and agreed
that, for the purposes of this Section 5.09, such Intercompany Scheduled
Existing Indebtedness shall be determined as of February 25, 2006), (v) existing
Indebtedness of the U.S. Borrower and its Subsidiaries of the type described in
clauses (viii), (xiii) and (xviii) of Section 9.04(b) in an aggregate principal
amount not to exceed the principal amount of such Indebtedness permitted by such
clauses of Section 9.04(b), (vi) Synthetic Lease obligations arising under the
lease entered into in connection with the Sale-Leaseback Transaction, (vii)
Indebtedness pursuant to the ABL Credit Documents and (viii) such other existing
indebtedness of Holdings and its Subsidiaries, if any, as shall be permitted by
the Agents and Required Lenders to remain outstanding (all of which Indebtedness
described in this clause (viii) (other than immaterial Contingent Obligations of
Subsidiaries of the U.S. Borrower that represent guaranties of obligations other
than Indebtedness) shall be required to be specifically listed as Third Party
Scheduled Existing Indebtedness on Part A of Schedule IV); for the avoidance of
doubt, preceding clauses (iv), (v), (vi) and (viii) shall in no event include
any Indebtedness under, or with respect to, the HQ Lease Agreements (as defined
in the Original U.S. Security Agreement), which Indebtedness has been paid in
full (and related commitments with respect thereto terminated) prior to the
Restatement Effective Date. On and as of the Restatement Effective Date, all
Indebtedness described in the immediately preceding sentence shall remain
outstanding after giving effect to the Transaction and the other transactions
contemplated hereby without any breach, required repayment, required offer to
purchase, default, event of default or termination rights existing thereunder or
arising as a result of the Transaction and the other transactions contemplated
hereby and there shall not be any amendments or modifications to the Existing
Indebtedness Agreements (other than as requested or approved by the Agents and
the Required Lenders). On and as of the Restatement Effective Date, the Agents
and the Required Lenders shall be satisfied with the amount of and the terms and
conditions of all Indebtedness described above in this Section 5.09.
5.10 U.S. Subsidiaries Guaranty, Foreign Subsidiaries Guaranty
Acknowledgment; Intercompany Subordination Agreement Acknowledgement.
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(a) On the Restatement Effective Date, each U.S. Subsidiary
Guarantor shall have duly authorized, executed and delivered the Amended and
Restated U.S. Subsidiaries Guaranty in the form of Exhibit G-1 (as further
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof, the "U.S. Subsidiaries Guaranty"). On the Restatement
Effective Date, the U.S. Subsidiaries Guaranty shall be in full force and
effect.
(b) On the Restatement Effective Date, each Wholly-Owned Foreign
Subsidiary of Holdings party to the Foreign Subsidiaries Guaranty shall have
duly authorized, executed and delivered an acknowledgment in the form of Exhibit
G-2 (the "Foreign Subsidiaries Guaranty Acknowledgement"), which Foreign
Subsidiaries Guaranty Acknowledgment shall contain, among other things, (i) an
acknowledgment of this Agreement and the transactions contemplated hereby, (ii)
an acknowledgement that the "Obligations" (as defined in the Foreign
Subsidiaries Guaranty) include all of the Obligations of the Bermuda Borrower
under this Agreement after giving effect to the Restatement Effective Date, and
(iii) an acknowledgment that, after giving effect to the Restatement Effective
Date, the Foreign Subsidiaries Guaranty shall remain in full force and effect in
accordance with its terms. On the Restatement Effective Date, the Foreign
Subsidiaries Guaranty shall be in full force and effect.
(a) On the Restatement Effective Date, each Credit Party and each
other Subsidiary of Holdings which is an obligee or obligor with respect to any
Intercompany Debt (other than those Non-Wholly-Owned Subsidiaries listed on Part
D of Schedule XII) shall have duly authorized, executed and delivered an
acknowledgment in the form of Exhibit O-1 (the "Intercompany Subordination
Agreement Acknowledgement"), and the Intercompany Subordination Agreement shall
be in full force and effect.
5.11 U.S. Security Documents. (a) On the Restatement Effective Date,
the U.S. Credit Parties shall have (i) delivered to the Collateral Agent, or
caused to be delivered to the Collateral Agent, fully executed counterparts of
amendments (or, in the alternative, amended and restated mortgages), in form and
substance satisfactory to the Administrative Agent, to each of the Mortgages
covering a U.S. Mortgaged Property, together with evidence that counterparts of
each such mortgage amendment and each such amended and restated mortgage has
been delivered to the title company insuring the Lien on the Mortgages for
recording in all places to the extent necessary or desirable, in the judgment of
the Collateral Agent, effectively to maintain a valid and enforceable first
priority mortgage lien on the U.S. Mortgaged Properties, in accordance with the
terms of the Intercreditor Agreement, in favor of the Collateral Agent for the
benefit of the Secured Creditors securing all of the Obligations (including the
Term Loans, all extensions of credit pursuant to the CL Tranche and the maximum
amount of Incremental Term Loans which may be incurred), (ii) delivered to the
Collateral Agent, or caused to be delivered to the Collateral Agent,
endorsements to each Mortgage Policy reasonably satisfactory to the Collateral
Agent, insuring the Collateral Agent that each Mortgage is a valid and
enforceable first priority mortgage lien on the respective Mortgaged Properties,
free and clear of all defects and encumbrances except Permitted Encumbrances and
(iii) taken (or caused to be taken) all actions reasonably required by the
Administrative Agent (including, without limitation, the obtaining of UCC-11's
or equivalent reports and the filing of UCC-1's or UCC-3's) in connection with
the granting of liens pursuant to the Mortgages covering U.S. Mortgaged
Properties.
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(b) On the Restatement Effective Date, each U.S. Credit Party shall
have duly authorized, executed and delivered the Amended and Restated U.S.
Pledge Agreement in the form of Exhibit H-1 (as amended, modified, restated
and/or supplemented from time to time in accordance with the terms hereof and
thereof, the "U.S. Pledge Agreement") and shall have delivered (or shall have
previously delivered) to the Collateral Agent, as Pledgee thereunder, all of the
U.S. Pledge Agreement Collateral, if any, referred to therein and then owned by
such U.S. Credit Party, together with executed and undated endorsements for
transfer or transfer powers, as applicable, in the case of Equity Interests
constituting certificated U.S. Pledge Agreement Collateral, along with evidence
that all other actions necessary or, in the reasonable opinion of the Collateral
Agent, desirable, to perfect the security interests purported to be created by
the U.S. Pledge Agreement have been taken and the U.S. Pledge Agreement shall be
in full force and effect.
(c) On the Restatement Effective Date, each U.S. Credit Party shall
have duly authorized, executed and delivered the Amended and Restated U.S.
Security Agreement in the form of Exhibit H-2 (as amended, modified, restated
and/or supplemented from time to time in accordance with the terms hereof and
thereof, the "U.S. Security Agreement") and shall have delivered (or shall have
previously delivered) to the Collateral Agent thereunder evidence that all other
actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the U.S.
Security Agreement have been taken and the U.S. Security Agreement shall be in
full force and effect. No filings, recordings, registrations or other actions
shall be necessary or desirable to maintain the perfection and priority of the
security interests granted pursuant to the U.S. Security Agreement, in
accordance with the terms of the Intercreditor Agreement, in the U.S. Security
Agreement Collateral covered thereby.
(d) On the Restatement Effective Date, the Intercompany Receivables
Documents shall be in full force and effect.
5.12 Foreign Security Document Acknowledgements and Amendments. (a) On
the Restatement Effective Date, (i) each of the Credit Parties listed on Part F
of Schedule XII shall have duly authorized, executed and delivered an
acknowledgement and/or amendment with respect to each Foreign Security Document
to which it is a party (each a "Foreign Security Document Acknowledgement and/or
Amendment"), which acknowledgement and/or amendment shall (w) be prepared by
local counsel reasonably satisfactory to the Agents, (x) be sufficient to
maintain a valid and enforceable first priority lien on the Collateral covered
by such Foreign Security Document in favor of the Collateral Agent for the
benefit of the Secured Creditors securing all of the relevant Obligations
(including any incremental Obligations resulting from the provision of Letters
of Credit and Bank Guaranties, Tranche C Term Loans and Incremental Term Loan
Commitments to the Bermuda Borrower), (y) be in full force and effect (and, if
applicable, properly recorded) and (z) otherwise be in form and substance
satisfactory to the Administrative Agent, (ii) such Credit Parties shall have
taken such actions as may be necessary or desirable under local law (as advised
by local counsel) to create, maintain, effect, perfect, preserve, maintain and
protect the security interests granted (or purported to be granted) by each such
Foreign Security Document and (iii) each Foreign Security Document shall be in
full force and effect. Part E of Schedule XII sets forth a list of all Foreign
Security Document
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Acknowledgements and/or Amendments to be executed and delivered on the
Restatement Effective Date.
(b) On the Restatement Effective Date, each Foreign Credit Party
listed on Part G of Schedule XII shall have duly authorized, executed and
delivered such amended and restated and/or replacement security agreements,
documents and instruments as may be required by the Agents (based on advice of
local counsel), with the intent being that the Lenders receive valid and
enforceable first priority, perfected security interests in the assets owned by
such Foreign Credit Party and originally covered by the Foreign Security
Agreements entered into by such Foreign Credit Party pursuant to the Original
Credit Agreement, securing all of the relevant Obligations (including such
Foreign Credit Party's guaranty obligations with respect to the Letters of
Credit and Bank Guaranties issued for the account of the Bermuda Borrower and
the Tranche C Term Loans and the Bermuda Borrower Incremental Term Loans). All
such security documentation to be executed and delivered by the Foreign Credit
Parties pursuant to the immediately preceding sentence (each, as amended,
modified, restated and/or supplemented from time to time, a "Replacement Foreign
Security Agreement" and, collectively, the "Replacement Foreign Security
Agreements") shall (i) be prepared by local counsel reasonably satisfactory to
the Agents, (ii) be in form and substance reasonably satisfactory to the Agents
and (iii) be in full force and effect on the Restatement Effective Date. In
connection with the execution and delivery of the Replacement Foreign Security
Agreements, the respective Foreign Credit Parties shall take such actions as may
be necessary or desirable under local law (as advised by local counsel) to
create, maintain, effect, perfect, preserve, maintain and protect the security
interests granted (or purported to be granted) thereby, in each case to the
extent customary in connection with secured transactions under the laws of the
respective jurisdiction or deemed necessary or desirable by the Agents based on
advice of local counsel. Part G of Schedule XII sets forth all Replacement
Foreign Security Agreements to be executed and delivered on the Restatement
Effective Date.
5.13 Shareholders' Agreements; Management Agreements; Existing
Indebtedness Agreements; and Tax Allocation Agreements. (a) On or prior to the
Restatement Effective Date, there shall have been made available to the
Administrative Agent by the U.S. Borrower true and correct copies of the
following documents as same will be in effect on the Restatement Effective Date
after the consummation of the Transaction, in each case, except to the extent
already delivered or made available for review by the Administrative Agent
pursuant to Section 5.13 of the Original Credit Agreement), certified as such by
the U.S. Borrower (in the case of the agreements referred to in clause (i), (ii)
and (iv) below):
(i) all written agreements (including, without limitation,
shareholders' agreements, subscription agreements and registration rights
agreements) entered into by Holdings or any of its Subsidiaries governing
the terms and relative rights of its capital stock or other Equity
Interests and any agreements entered into by shareholders relating to any
such entity with respect to its capital stock or other Equity Interests
(collectively, together with any agreements referred to in Section 5.13(i)
of the Original Credit Agreement that continue to be in effect on the
Restatement Effective Date, and any amendments thereto referred to in
Section 5.13(b), the "Shareholders' Agreements");
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(ii) all material written agreements (including employment agreements
but limited to those of executive management and division presidents)
entered into by Holdings or any of its Subsidiaries with respect to the
management of Holdings or any of its Subsidiaries after giving effect to
the Transaction (including consulting agreements and other management
advisory agreements) (collectively, together with any agreements referred
to in Section 5.13(ii) of the Original Credit Agreement that continue to be
in effect on the Restatement Effective Date, and any amendments thereto
referred to in Section 5.13(b), the "Management Agreements");
(iii) all agreements evidencing or relating to any material Existing
Indebtedness of Holdings or any of its Subsidiaries (collectively, together
with any agreements referred to in Section 5.13(iii) of the Original Credit
Agreement that continue to be in effect on the Restatement Effective Date,
and any amendments thereto referred to in Section 5.13(b), the "Existing
Indebtedness Agreements"); and
(iv) any tax sharing or tax allocation agreements entered into by
Holdings or any of its Subsidiaries (collectively, together with any
agreements referred to in Section 5.13(iv) of the Original Credit Agreement
that continue to be in effect on the Restatement Effective Date, and any
amendments thereto referred to in Section 5.13(b), the "Tax Allocation
Agreements");
all of which Shareholders' Agreements, Management Agreements, Existing
Indebtedness Agreements and Tax Allocation Agreements shall be in form and
substance reasonably satisfactory to the Agents and shall be in full force and
effect on the Restatement Effective Date.
(b) On or prior to the Restatement Effective Date, the Administrative
Agent shall have received (i) a certification from an Authorized Officer of the
U.S. Borrower that all agreements referenced in clauses (i), (ii), (iii) and
(iv) of Section 5.13 of the Original Credit Agreement previously delivered (or
made available) to the Administrative Agent by the U.S. Borrower and/or any of
its Subsidiaries, remain in full force and effect (or specifying which of such
agreements do not remain in full force and effect) and (ii) any amendments to
the agreements referred to in clauses (i), (ii), (iii) and (iv) of Section 5.13
of the Original Credit Agreement that remain in effect on the Restatement
Effective Date.
5.14 Solvency Certificate. On or before the Restatement Effective
Date, the Administrative Agent shall have received a solvency certificate in the
form of Exhibit I from the chief financial officer of Holdings, dated the
Restatement Effective Date, and supporting the conclusion that, after giving
effect to the Transaction and the incurrence of all financings contemplated
herein, each Borrower (on a stand-alone basis), the U.S. Borrower and its
Subsidiaries (on a consolidated basis), the Bermuda Borrower and its
Subsidiaries (on a consolidated basis) and Holdings and its Subsidiaries (on a
consolidated basis), in each case, are not insolvent and will not be rendered
insolvent by the indebtedness incurred in connection herewith, will not be left
with unreasonably small capital with which to engage in its or their respective
businesses and will not have incurred debts beyond its or their ability to pay
such debts as they mature and become due.
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5.15 Financial Statements; Pro Forma Financial Statements;
Projections. (a) On or prior to the Restatement Effective Date, there shall have
been delivered to the Administrative Agent (i) true and correct copies of the
financial statements referred to in Section 7.10(b)(i) and (ii) an unaudited pro
forma (calculated as if the Transaction had occurred on such date) consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as of
December 31, 2005 and the related pro forma (calculated as if the Transaction
had occurred on the first day of the period covered thereby) statement of income
for the twelve-month period ended as of such date, after giving effect to the
Transaction and the incurrence of all Indebtedness contemplated herein (the "Pro
Forma Financial Statements"), together with a related funds flow statement,
which financial statements, Pro Forma Financial Statements and funds flow
statement shall be reasonably satisfactory to the Agents and the Required
Lenders.
(b) On or prior to the Restatement Effective Date, there shall have
been delivered to the Administrative Agent detailed projected consolidated
financial statements of the U.S. Borrower and its Consolidated Subsidiaries
certified by the Chief Financial Officer of the U.S. Borrower for the five
Fiscal Years ended after the Restatement Effective Date (the "Projections"),
which Projections (x) shall reflect the forecasted consolidated financial
conditions and income and expenses of the U.S. Borrower and its Consolidated
Subsidiaries after giving effect to the Transaction and the related financing
thereof and the other transactions contemplated hereby and (y) shall be
reasonably satisfactory in form and substance to the Agents and the Required
Lenders.
5.16 Payment of Fees. On the Restatement Effective Date, all costs,
fees and expenses, and all other compensation due to the Agents and the Lenders
(including, without limitation, legal fees and expenses) shall have been paid to
the extent then due.
5.17 Consent Letter. On the Restatement Effective Date, the
Administrative Agent shall have received a letter from Corporation Service
Company, presently located at ββ βββββ ββββββ, ββββββ, βββ ββββ, βββββ,
substantially in the form of Exhibit N, indicating its consent to its
appointment by each New Foreign Subsidiary Guarantor as its agent to receive
service of process as specified in the Foreign Subsidiaries Guaranty.
5.18 Intercreditor Agreement. On the Restatement Effective Date, each
Credit Party, the Collateral Agent, each ABL Credit Party and the ABL Collateral
Agent shall have duly authorized, executed and delivered the Intercreditor
Agreement in the form of Exhibit Q (as amended, modified, restated and/or
supplemented from time to time, the "Intercreditor Agreement"), and the
Intercreditor Agreement shall be in full force and effect on the Restatement
Effective Date.
Section 6. Conditions Precedent to All Credit Events. The obligation
of each Lender to make Loans (including Loans made on the Restatement Effective
Date), the obligation of the each CL Lender to fund its Credit-Linked Deposit
and the obligation of an Issuing Lender to issue any Letter of Credit (including
any Existing Letters of Credit, deemed issued on the Restatement Effective Date
as contemplated by Section 2A.01(d)) and the obligation of a Bank Guaranty
Issuer to issue any Bank Guaranty (including Existing Bank Guaranties, deemed
issued on the Restatement Effective Date as contemplated by Section 2B.01(d)),
is subject, at the time
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of each such Credit Event (except as hereinafter indicated), to the satisfaction
of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
such Credit Event and immediately after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request; etc. (a) Prior to
the making of each Loan, the Administrative Agent shall have received a Notice
of Borrowing meeting the requirements of Section 1.03.
(b) Prior to the issuance of each Letter of Credit (other than the
Existing Letters of Credit), the Administrative Agent and the respective Issuing
Lender shall have received a Letter of Credit Request meeting the requirements
of Section 2A.03(a).
(c) Prior to the issuance of each Bank Guaranty (other than the
Existing Bank Guaranties), the Administrative Agent and the respective Bank
Guaranty Issuer shall have received a Bank Guaranty Request meeting the
requirements of Section 2B.03(a).
6.03 Incremental Term Loans. Prior to the incurrence of any
Incremental Term Loans, Holdings shall have satisfied (or caused to be
satisfied) all of the applicable conditions set forth in Section 1.15.
The occurrence of the Restatement Effective Date and the acceptance of
the benefits or proceeds of each Credit Event shall constitute a representation
and warranty by each Credit Agreement Party to each Agent and each of the
Lenders that all the conditions specified in Section 5 (with respect to Credit
Events occurring on the Restatement Effective Date) and Section 6 (with respect
to Credit Events on and after the Restatement Effective Date) and applicable to
such Credit Event (other than such conditions that are expressly subject to the
satisfaction of the Agents and/or the Required Lenders) exist as of that time.
All of the Notes, certificates, legal opinions and other documents and papers
referred to in Sections 5 and 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for each
of the Lenders and shall be in form and substance reasonably satisfactory to the
Lenders (as evidenced by their execution and delivery of this Agreement).
Section 7. Representations and Warranties. In order to induce the
Lenders to enter into this Agreement, to make (and/or continue) the Loans, fund
the Credit-Linked Deposits and issue and/or participate in the Letters of Credit
and Bank Guaranties as provided for herein, each Credit Agreement Party makes
the following representations, warranties and agreements with the Lenders, in
each case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement, the making of the Loans, the funding
of the Credit-
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Linked Deposits and the issuance (or deemed issuance) of the Letters of Credit
and Bank Guaranties (with the occurrence of the Restatement Effective Date and
each Credit Event on or after the Restatement Effective Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the
Restatement Effective Date and on and as of the date of each such Credit Event,
unless stated to relate to a specific earlier date in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date):
7.01 Company Status. Each of Holdings and each of its Subsidiaries (i)
is a duly organized and validly existing Company in good standing (or its
equivalent) under the laws of the jurisdiction of its organization, (ii) has the
Company power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing (or its
equivalent) in all jurisdictions where it is required to be so qualified (or its
equivalent) and where the failure to be so qualified has had, or could
reasonably be expected to have, a Material Adverse Effect.
7.02 Company Power and Authority. Each Credit Party and each
Subsidiary thereof has the Company power and authority to execute, deliver and
carry out the terms and provisions of the Documents to which it is a party and
has taken all necessary Company action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party and each
Subsidiary thereof has duly executed and delivered each Document to which it is
a party and each such Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
7.03 No Violation. (a) Neither the execution, delivery or performance
by any Credit Party or any Subsidiary thereof of the Documents to which it is a
party, nor compliance by any Credit Party or any such Subsidiary with the terms
and provisions thereof, nor the consummation of the transactions contemplated
herein or therein, (i) will contravene any material provision of any applicable
law, statute, rule or regulation, or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Security Documents) result in the creation or imposition of (or the obligation
to create or impose) any Lien upon any of the material property or assets of
Holdings or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, credit agreement or any other material
agreement, contract or instrument to which Holdings or any of its Subsidiaries
is a party or by which it or any of its material property or assets are bound or
to which it may be subject (including, without limitation, the ABL Credit
Documents, the Existing Senior Notes Documents, the Intermediate Holdco Credit
Documents, the other Existing Indebtedness Agreements and any Wellbeing Project
Financing Document, and, on and after the execution and delivery thereof, any
Permitted Senior Notes Indenture and any Permitted Refinancing Senior Notes
Document) or (iii) will violate any provision of the certificate of
incorporation, by-laws, certificate of partnership, partnership
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agreement, certificate of limited liability company, limited liability company
agreement or equivalent organizational document, as the case may be, of Holdings
or any of its Subsidiaries.
(b) Without limiting the generality of the foregoing in Section
7.03(a):
(i) this Agreement, together with the ABL Credit Agreement, constitute
(individually and collectively) the "Credit Agreement" under, and as defined in,
each Existing Senior Notes Indenture;
(ii) the incurrence by the relevant Borrowers of the Loans and other
Indebtedness hereunder under on the Restatement Effective Date and on the date
of each subsequent Credit Event will not violate any of (I) Section 1014 of the
Existing 2009 Senior Notes Indenture or any other provision thereof, (II)
Section 4.9 of the Existing 2010 Senior Notes Indenture or any other provision
thereof, (III) Section 4.9 of the Existing 2011 Senior Notes Indenture or any
other provision thereof, or (IV) Section 1014 of the Existing 2013 Senior Notes
Indenture or any other provision thereof and, without limiting the foregoing, on
the Restatement Effective Date, neither the incurrence of any Loans to be
incurred on such date, nor the incurrence of Indebtedness in the full amount of
the commitments available under the ABL Credit Agreement and pursuant to the
Total Credit-Linked Commitment (as if, in each case, such commitments were fully
utilized on such date), would violate any of the sections specifically set forth
above (or any other provision) of the Existing Senior Notes Indentures;
(iii) on the Restatement Effective Date, all Subsidiary Guarantors
which are Domestic Subsidiaries of the U.S. Borrower are "Restricted
Subsidiaries" under, and as defined in, each Existing Senior Notes Indenture and
have executed and delivered guaranties in accordance with the requirements of
the respective Existing Senior Notes Indentures; and
(iv) for the purpose of the definition of "Permitted Indebtedness"
under, and as defined in, each Existing Senior Notes Indenture, on the
Restatement Effective Date no repayment of term loans and/or permanent
commitment reductions in the revolving credit portion of the Credit Agreement
(as defined therein) has theretofore occurred (whether prior to, or on, the
Restatement Effective Date) which has resulted in any reduction to the maximum
aggregate amount of Indebtedness permitted to be incurred pursuant to, or under,
the Credit Agreement (as defined therein) in accordance with the applicable
Existing Senior Notes Indenture.
7.04 Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of any Senior Officer, threatened
(i) with respect to any Credit Document, (ii) with respect to the Transaction or
any other Document or (iii) that have had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Additionally,
there does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of the
Tranche B Term Loans and the Tranche C Term Loans shall be utilized by the U.S.
Borrower and the Bermuda Borrower, respectively, on the Restatement Effective
Date solely to finance the Refinancing and to pay fees and expenses incurred in
connection with the Transaction. All proceeds of Incremental Term Loans incurred
by each Incremental Term Loan Borrower shall be
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used for any purpose permitted under this Agreement, including, without
limitation, (i) to finance Permitted Acquisitions (and to pay the fees and
expenses related thereto) and to refinance any Indebtedness assumed as part of
any such Permitted Acquisitions (and to pay all accrued and unpaid interest
thereon, any prepayment premium associated therewith and the fees and expenses
related thereto), (ii) to prepay outstanding Loans in accordance with the terms
of this Agreement and to prepay outstanding ABL Loans in accordance with the
terms of the ABL Credit Agreement, (iii) for the Incremental Term Loan
Borrowers' and their respective Subsidiaries' ongoing working capital
requirements and general corporate purposes and (iv) in the case of Incremental
Term Loans incurred by the U.S. Borrower, to (x) make intercompany loans to
Intermediate Holdco pursuant to Section 9.05(xxi) to be utilized for the
purposes described in subclause (iv) thereof and/or (y) pay Dividends to
Intermediate Holdco pursuant to Section 9.06(ix) to be utilized for the purposes
described in subclause (v) thereof.
(b) At the time of each Credit Event occurring on or after the
Restatement Effective Date, the aggregate value of all Margin Stock (other than
treasury stock) owned by Holdings and its Subsidiaries (for such purpose, using
the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) does not exceed $10,000,000. In addition, at
the time of each Credit Event occurring on or after the Restatement Effective
Date, the value of the Margin Stock at any time owned by Holdings and its
Subsidiaries does not exceed 25% of the value of the assets of Holdings and its
Subsidiaries taken as a whole. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation X.
7.06 Governmental Approvals. Except as may have been obtained or made
on or prior to the Restatement Effective Date (and which remain in full force
and effect on the Restatement Effective Date), no order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with, or exemption by, any foreign or domestic governmental or public body or
authority, or any subdivision thereof, is required to authorize or is required
in connection with (i) the execution, delivery and performance of any Document
or (ii) the legality, validity, binding effect or enforceability of any
Document.
7.07 Investment Company Act. Neither Holdings nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither Holdings nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of Holdings or
any of its Subsidiaries in writing to any Agent or any Lender (including,
without limitation, all information contained in the Documents) for purposes of
or in connection with this Agreement, the other Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of any such Persons in writing
to any Agent or any
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Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided, it being understood and
agreed that for purposes of this Section 7.09, such factual information shall
not include the Projections or any projected financial information contained in
any financial projections delivered pursuant to Section 8.01(c).
7.10 Financial Condition; Financial Statements. (a) On and as of the
Restatement Effective Date, on a pro forma basis after giving effect to the
Transaction and to all Indebtedness (including the Loans) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to each Borrower (on a stand-alone basis),
Holdings and its Subsidiaries (on a consolidated basis) and each Borrower and
its Subsidiaries (on a consolidated basis) (x) the sum of the assets, at a fair
valuation, of each Borrower (on a stand-alone basis), Holdings and its
Subsidiaries (on a consolidated basis) and each Borrower and its Subsidiaries
(on a consolidated basis) will exceed its or their debts, (y) it has or they
have not incurred nor intended to, nor believes or believe that it or they will,
incur debts beyond its or their ability to pay such debts as such debts mature
and (z) it or they will have sufficient capital with which to conduct its or
their business. For purposes of this Section 7.10(a), "debt" means any liability
on a claim, and "claim" means (i) right to payment, whether or not such a right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (ii)
right to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
(b) (i) The audited consolidated statements of financial condition of
the U.S. Borrower and its Consolidated Subsidiaries at December 28, 2002,
January 3, 2004 and January 1, 2005 and the related consolidated statements of
income and cash flows and changes in shareholders' equity of the U.S. Borrower
and its Consolidated Subsidiaries for the fiscal years of the U.S. Borrower
ended on such dates, in each case furnished to the Lenders prior to the
Restatement Effective Date, present fairly in all material respects the
consolidated financial position of the U.S. Borrower and its Consolidated
Subsidiaries at the date of said financial statements and the results for the
respective periods covered thereby and (ii) the Pro Forma Financial Statements
present a good faith estimate of the consolidated pro forma financial condition
of the U.S. Borrower and its Consolidated Subsidiaries and the pro forma results
of operations of the U.S. Borrower and its Consolidated Subsidiaries for the
respective periods covered thereby (after giving effect to the Transaction at
the date thereof or for the period covered thereby). All of the financial
statements referred to in clause (i) of the immediately preceding sentence have
been prepared in accordance with U.S. GAAP consistently applied except to the
extent provided in the notes to said financial statements.
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(c) Since December 31, 2005 (but after giving effect to the
Transaction as if same had occurred immediately prior thereto), nothing has
occurred that has had, or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described in
Section 7.10(b) and as otherwise permitted by Section 9.04, (i) there were as of
the Restatement Effective Date (and after giving effect to any Loans made on
such date), no liabilities or obligations with respect to Holdings or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, could reasonably be expected to be material to Holdings and its
Subsidiaries taken as a whole and (ii) no Credit Agreement Party knows of any
basis for the assertion against Holdings or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, has had,
or could reasonably be expected to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with the
financial statements referred to in Section 7.10(b) and are based on good faith
estimates and assumptions made by the management of Holdings, and on the
Restatement Effective Date, the Borrowers believe that the Projections are
reasonable and attainable, it being recognized by the Lenders that such
projections of future events are not to be viewed as facts and that actual
results during the period or periods covered by any such Projections may differ
from the projected results contained therein. There is no fact known to any
Credit Agreement Party or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect, which has not been
disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
7.11 Security Interests. On and after the Restatement Effective Date,
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations covered thereby, a valid
and enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons, and
subject to no other Liens (except that, subject to the provisions of the
Intercreditor Agreement, (i) the Security Agreement Collateral may be subject to
Permitted Liens, (ii) the Pledge Agreement Collateral may be subject to the
Liens described in clauses (i) and (v) of Section 9.03 and clause (y) of Section
9.03(iii) and (iii) the security interest and mortgage lien created on any
Mortgaged Property may be subject to the Permitted Encumbrances related
thereto), in favor of the Collateral Agent (or such other trustee or sub-agent
as may be required or desired under local law). No filings or recordings are
required in order to perfect and/or render enforceable as against third parties
the security interests created under any Security Document except for filings or
recordings required in connection with any such Security Document which shall
have been made on or prior to the Restatement Effective Date or on or prior to
the execution and delivery thereof as contemplated by Sections 8.11, 8.12, 8.15
and 9.11.
7.12 Compliance with ERISA. (a) Schedule V sets forth, as of the
Restatement Effective Date, each Plan and each Multiemployer Plan. Each Plan
(and each related trust, insurance contract or fund) is in compliance in all
respects with its terms and in all respects with all applicable laws, including,
without limitation, ERISA and the Code and in compliance with the following,
except to the extent that any such noncompliances, individually or in the
aggregate, would not result in a Material Adverse Effect; each Plan (and each
related
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trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code (or the sponsor has applied for such determination letter within the
remedial amendment period); (1) no Reportable Event has occurred; (2) to the
knowledge of any Senior Officer, no Multiemployer Plan is insolvent or in
reorganization; (3) no Plan has an Unfunded Current Liability; (4) no Plan which
is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such sections of the Code or ERISA, or
has applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; (5) all required contributions with respect
to a Plan and a Multiemployer Plan have been made; (6) neither Holdings nor any
Subsidiary of Holdings nor any ERISA Affiliate has incurred any outstanding
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan or a Multiemployer Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
material liability under any of the foregoing sections with respect to any Plan
or a Multiemployer Plan; (7) no condition exists which presents a material risk
to Holdings or any Subsidiary of Holdings or any ERISA Affiliate of incurring a
material liability to or on account of a Plan or a Multiemployer Plan pursuant
to the foregoing provisions of ERISA and the Code; (8) no involuntary
proceedings have been instituted to terminate or appoint a trustee to administer
any Plan which is subject to Title IV of ERISA; (9) no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; (10) using actuarial assumptions and
computation methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of Holdings and its Subsidiaries and ERISA Affiliates
to any Multiemployer Plans in the event of a withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan ended prior
to the date of the most recent Credit Event would not exceed $10,000,000; (11)
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of Holdings, any Subsidiary of Holdings, or any ERISA Affiliate has at
all times been operated in compliance with the provisions of Part 6 of subtitle
B of Title I of ERISA and Section 4980B of the Code other than any
non-compliance which would not result in a material liability to Holdings or any
Subsidiary of Holdings; (12) no lien imposed under the Code or ERISA on the
assets of Holdings or any Subsidiary of Holdings or any ERISA Affiliate exists,
is likely to arise on account of any Plan or any Multiemployer Plan; and (13)
and neither Holdings nor any Subsidiary of Holdings maintains or contributes to
(a) any employee welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees and/or other former employees
(other than as required by Section 601 of ERISA) or (b) any Plan, the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities, except to the
extent that such noncompliances, individually or in the aggregate, would not
result in a Material Adverse Effect. All required contributions with respect to
a Foreign Pension Plan have been made. Neither Holdings nor any of its
Subsidiaries
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has incurred any material outstanding obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan. The present value of
the accrued benefit liabilities (whether or not vested) under each Foreign
Pension Plan, determined as of the end of Holdings' most recently ended fiscal
year on the basis of actuarial assumptions, each of which is reasonable, did not
exceed the current value of the assets of such Foreign Pension Plan allocable to
such benefit liabilities or alternatively, the Foreign Pension Plan is funded in
compliance with applicable law in all material respects and Holdings and its
Subsidiaries have established adequate reserves for the present value of such
accrued benefit liabilities under such Foreign Pension Plan in the financial
statements delivered pursuant to Section 8.01(a) and (b).
7.13 Capitalization. (a) On the Restatement Effective Date and after
giving effect to the Transaction, the authorized capital stock of Holdings shall
consist of 1,000 shares of common stock, $.001 par value per share (such
authorized shares of common stock, together with any subsequently authorized
shares of common stock of Holdings, the "Holdings Common Stock"), of which 1000
shares are issued and outstanding. All such outstanding shares have been duly
and validly issued, are fully paid and nonassessable and free of preemptive
rights. As of the Restatement Effective Date, except as set forth on Part A of
Schedule X hereto, Holdings does not have outstanding any securities convertible
into or exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
(b) On the Restatement Effective Date and after giving effect to the
Transaction, all of the Equity Interests of Intermediate Holdco are owned by
Holdings and pledged pursuant to the U.S. Pledge Agreement. Intermediate Holdco
does not have outstanding any securities convertible into or exchangeable for
its Equity Interests or outstanding any rights to subscribe for or to purchase,
or any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its Equity Interests or any equity appreciation or
similar rights.
(c) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of the U.S. Borrower shall consist of
1000 shares of common stock, $.001 par value per share, of which 1000 shares
were issued and outstanding, owned by Intermediate Holdco and delivered for
pledge pursuant to the U.S. Pledge Agreement. All such outstanding shares have
been duly and validly issued, are fully paid and nonassessable and free of
preemptive rights. The U.S. Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
(d) On the Restatement Effective Date and after giving effect to the
Transaction, the authorized capital stock of the Bermuda Borrower shall consist
of 2,319,640,170 shares of common stock, $.10 par value per share, of which
2,319,640,170 shares are issued and outstanding and owned indirectly by the
Bermuda Partnership. All such outstanding shares have been duly and validly
issued, are fully paid and nonassessable and free of preemptive rights. The
Bermuda Borrower does not have outstanding any securities convertible into or
exchangeable for
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its capital stock or outstanding any rights to subscribe for or to purchase, or
any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock or any stock appreciation or similar
rights.
7.14 Subsidiaries. On and as of the Restatement Effective Date and
after giving effect to the Transaction, Holdings has no Subsidiaries other than
Westlake Wellbeing Company LLC, The California Wellbeing Institute, LLC and
Intermediate Holdco and its Subsidiaries, and Intermediate Holdco has no
Subsidiaries other than those Subsidiaries listed on Schedule VII. Schedule VII
correctly sets forth, as of the Restatement Effective Date and after giving
effect to the Transaction, (i) the percentage ownership (direct and indirect) of
Intermediate Holdco in each class of capital stock or other Equity Interests of
each of its Subsidiaries and also identifies the direct owner thereof and (ii)
the jurisdiction of organization of each such Subsidiary. All outstanding shares
of capital stock or other Equity Interests of each Subsidiary of Intermediate
Holdco have been duly and validly issued, are fully paid and non-assessable and,
in the case of Non-Wholly Owned Subsidiaries of the U.S. Borrower, have been
issued free of preemptive rights. Except as set forth on Part B of Schedule X
attached hereto, no Subsidiary of Intermediate Holdco has outstanding any
securities convertible into or exchangeable for its capital stock or other
Equity Interests or outstanding any right to subscribe for or to purchase, or
any options or warrants for the purchase of, or any agreement providing for the
issuance (contingent or otherwise) of or any calls, commitments or claims of any
character relating to, its capital stock or other Equity Interests or any stock
appreciation or similar rights. Except for the existing investments described on
Schedule VI, as of the Restatement Effective Date, neither Holdings nor any of
its Subsidiaries owns or holds, directly or indirectly, any capital stock or
equity security of, or any other Equity Interests in, any Person other than its
Subsidiaries indicated on Schedule VII.
7.15 Intellectual Property, etc. Each of Holdings and each of its
Subsidiaries owns or has the right to use all domestic and foreign patents,
trademarks, permits, domain names, service marks, trade names, copyrights,
licenses, franchises, inventions, trade secrets, proprietary information and
know-how of any type, whether or not written (including, but not limited to,
rights in computer programs and databases) and formulas, or other rights with
respect to the foregoing, and has obtained assignments of all leases, licenses
and other rights of whatever nature, in each case necessary for the conduct of
its business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, individually or in the aggregate,
has had, or could reasonably be expected to have, a Material Adverse Effect.
7.16 Compliance with Statutes; Agreements, etc. Each of Holdings and
each of its Subsidiaries is in compliance with (i) all applicable statutes,
regulations, rules and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property and (ii) all contracts and agreements
to which it is a party, except such non-compliances as have not had, and could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
7.17 Environmental Matters. (a) Each of Holdings and each of its
Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws
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and neither Holdings nor any of its Subsidiaries is liable for any material
penalties, fines or forfeitures for failure to comply with any of the foregoing.
There are no pending or past or, to the knowledge of any Senior Officer,
threatened Environmental Claims against Holdings or any of its Subsidiaries or
any Real Property owned, leased or operated by Holdings or any of its
Subsidiaries (including any such claim arising out of the ownership, lease or
operation by Holdings or any of its Subsidiaries of any Real Property formerly
owned, leased or operated by Holdings or any of its Subsidiaries but no longer
owned, leased or operated by Holdings or any of its Subsidiaries). There are no
facts, circumstances, conditions or occurrences on any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries (including, to the
knowledge of a Senior Officer, any Real Property formerly owned, leased or
operated by Holdings or any of its Subsidiaries but no longer owned, leased or
operated by Holdings or any of its Subsidiaries) or on any property adjoining or
in the vicinity of any such Real Property that would reasonably be expected (i)
to form the basis of an Environmental Claim against Holdings or any of its
Subsidiaries or any such Real Property or (ii) to cause any such Real Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by Holdings or any of its Subsidiaries
under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries except in compliance with all
applicable Environmental Laws and in connection with the operation, use and
maintenance of such Real Property by Holdings' or such Subsidiary's business.
Hazardous Materials have not at any time been Released on or from any Real
Property owned, leased or operated by Holdings or any of its Subsidiaries or by
any person acting for or under contract to Holdings or any of its Subsidiaries,
or to the knowledge of any Credit Agreement Party, by any other Person in
respect of Real Property owned, leased or operated by Holdings or any of its
Subsidiaries (including, to the knowledge of any Credit Agreement Party, any
Real Property owned, leased or operated by Holdings or any of its Subsidiaries
but no longer owned, leased or operated by Holdings or any of its Subsidiaries),
except in compliance with all applicable Environmental Laws in all material
respects.
(c) Notwithstanding anything to the contrary in this Section 7.17, the
representations made in this Section 7.17 shall only be untrue if the aggregate
effect of all conditions, failures, noncompliances, Environmental Claims,
Hazardous Materials, Releases and presence of underground storage tanks, in each
case of the types described above, has had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
7.18 Properties. All Real Property (other than Real Property with an
individual Fair Market Value less than $1,000,000 as of the Restatement
Effective Date) and vessels owned by Holdings or any of its Subsidiaries, and
all material leaseholds leased by Holdings or any of its Subsidiaries, in each
case as of the Restatement Effective Date and after giving effect to the
Transaction, and the nature of the interest therein, is correctly set forth in
Schedule III (and, to the extent that any such Real Property (or any portion
thereof) constitutes "Principal Property" (as defined in any of the Existing
Senior Note Indentures), Schedule III correctly identifies such Real Property
(or the applicable portion thereof) as "Principal Property"). Each of Holdings
and each of its Subsidiaries has good and marketable title to, or a validly
subsisting leasehold interest in, all material properties owned or leased by it,
including all Real Property and vessels reflected
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in Schedule III and in the financial statements (including the Pro Forma
Financial Statements) referred to in Section 7.10(b) (except (x) such properties
sold in the ordinary course of business since the dates of the respective
financial statements referred to therein, (y) such properties otherwise sold as
permitted by the terms of this Agreement and (z) such Real Properties owned by
the U.S. Borrower or any of its Subsidiaries which may be subject to immaterial
defects of title which do not impair the use of such Real Property or the
business conducted by the U.S. Borrower or such Subsidiary thereon), free and
clear of all Liens, other than Permitted Liens.
7.19 Labor Relations. Neither Holdings nor any of its Subsidiaries is
engaged in any unfair labor practice that has had, or could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect. There is (i) no unfair labor practice complaint pending against Holdings
or any of its Subsidiaries or, to the knowledge of any Senior Officer,
threatened against any of them, before the National Labor Relations Board or any
similar foreign tribunal or agency, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against Holdings or any of its Subsidiaries or, to the knowledge of any Senior
Officer, threatened against any of them, (ii) no strike, labor dispute, slowdown
or stoppage pending against Holdings or any of its Subsidiaries or, to the
knowledge of any Senior Officer, threatened against Holdings or any of its
Subsidiaries and (iii) no union representation question existing with respect to
the employees of Holdings or any of its Subsidiaries and no union organizing
activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate) such
as has not had, or could reasonably be expected to have, a Material Adverse
Effect.
7.20 Tax Returns and Payments. Holdings and each of its Subsidiaries
has timely filed (including applicable extensions) with the appropriate taxing
authority, all material returns, statements, forms and reports for taxes (the
"Returns") required to be filed by or with respect to the income, properties or
operations of Holdings and each of its Subsidiaries. The Returns accurately
reflect in all material respects all liability for taxes of Holdings and each of
its Subsidiaries as a whole for the periods covered thereby. Holdings and each
of its Subsidiaries have paid all material taxes payable by them other than
those contested in good faith and adequately disclosed and for which adequate
reserves have been established in accordance with U.S. GAAP. Except as set forth
on Schedule XVI hereto, there is no action, suit, proceeding, investigation,
audit, or claim now pending or, to the knowledge of any Senior Officer,
threatened by any authority regarding any taxes relating to Holdings and each of
its Subsidiaries. Except as set forth on Schedule XVI hereto, neither Holdings
nor any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of Holdings or any of
its Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of Holdings or any of its Subsidiaries not to be
subject to the normally applicable statute of limitations.
7.21 Scheduled Existing Indebtedness. Schedule IV sets forth a true
and complete list of all Indebtedness of Holdings and its Subsidiaries as of the
Restatement Effective Date and which is to remain outstanding after giving
effect to the Transaction and the incurrence of Loans and ABL Loans on such date
(exclusive of (i) Indebtedness pursuant to this Agreement and the other Credit
Documents, (ii) Indebtedness pursuant to the ABL Credit Agreement and the other
ABL Credit Documents, (iii) Indebtedness pursuant to the Existing Senior Notes
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Documents and the Intermediate Holdco Credit Documents, (iv) intercompany
Indebtedness pursuant to the Intercompany Distribution Transactions, (v)
Indebtedness of Holdings and/or any of its Subsidiaries of the types described
in clauses (viii), (xiii) and (xviii) of Section 9.04(b), (vi) Synthetic Lease
obligations arising under the lease entered into in connection with the
Sale-Leaseback Transaction, and (vii) immaterial Contingent Obligations of
Subsidiaries of the U.S. Borrower that represent guaranties of obligations other
than Indebtedness), in each case showing the aggregate principal amount thereof
(and the aggregate amount of any undrawn commitments with respect thereto) and
the name of the respective borrower and any other entity which directly or
indirectly guarantees such debt. Part A of Schedule IV lists all Indebtedness as
described in the immediately preceding sentence which is owed to Persons other
than Holdings or any of its Subsidiaries (after giving effect to the
consummation of the Transaction) (with all such Indebtedness being herein called
"Third Party Scheduled Existing Indebtedness") and Part B of Schedule IV lists
all Indebtedness as described in the immediately preceding sentence which is
owed to Holdings and its Subsidiaries as of February 25, 2006 (with all of such
Indebtedness being herein called "Intercompany Scheduled Existing
Indebtedness").
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
and complete summary of all insurance maintained by Holdings and its
Subsidiaries on and as of the Restatement Effective Date, with the amounts
insured (and any deductibles) set forth therein.
7.23 Transaction. At the time of consummation thereof, each element of
the Transaction shall have been consummated in all material respects in
accordance with the terms of the relevant Documents therefor and all applicable
laws. At the time of consummation thereof, all consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order to
make or consummate each element of the Transaction in accordance with the terms
of the relevant Documents therefor and all applicable laws have been obtained,
given, filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). Additionally, there
does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon any element of the Transaction, the occurrence
of any Credit Event, or the performance by Holdings or any of its Subsidiaries
of their respective obligations under the Documents and in accordance with all
applicable laws.
7.24 Special Purpose Corporations. (a) Holdings has no significant
assets (other than (v) cash and Cash Equivalents held by Holdings representing
proceeds from the Wellbeing Project Financing, (w) the Equity Interests of
Intermediate Holdco, Westlake Wellbeing Company LLC and The California Wellbeing
Institute, LLC, (x) after the issuance thereof, the Equity Interests of each of
the Unrestricted Wellbeing Joint Ventures, (y) Intercompany Notes evidencing
intercompany loans permitted to be made by Holdings pursuant to Section 9.05 and
(z) immaterial assets used for the performance of those activities permitted to
be performed by Holdings pursuant to Section 9.01(b)) or liabilities (other than
under this Agreement and the other Documents (including the ABL Credit
Documents) to which it is a party (including the Wellbeing Project Financing
Documents), those liabilities permitted to be incurred by Holdings pursuant to
Section 9.01(b) and, as and when issued from time to time in accordance with the
terms of this Agreement, under Shareholder Subordinated Notes).
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(b) The Bermuda Partnership has no significant assets (other than
Equity Interests of its Subsidiaries and the immaterial assets used for the
performance of those activities permitted to be performed by it pursuant to
Section 9.01(c)) or liabilities (other than under this Agreement and the other
Credit Documents to which it is a party and those liabilities permitted to be
incurred by it pursuant to Section 9.01(c)); provided that notwithstanding the
foregoing, the Bermuda Partnership shall be permitted to (i) provide treasury,
accounting, logistic and other administrative support services to its Affiliates
on an arm's length basis and hold and retain cash earned in connection with the
provision of such services and (ii) receive and hold additional cash and Cash
Equivalents from its Subsidiaries and/or Affiliates, so long as, in the case of
this clause (ii), same are promptly (and in any event within one Business Day of
receipt thereof) loaned, distributed and/or contributed, subject to Section
9.01(d), to its Subsidiaries and/or Affiliates in accordance with the
requirements of Section 9.05 of this Agreement.
(c) Intermediate Holdco has no significant assets (other than the
Equity Interests of the U.S. Borrower and Corporate Holdco, Intercompany Notes
evidencing intercompany loans permitted to be made by Intermediate Holdco
pursuant to Section 9.05 and immaterial assets used for the performance of those
activities permitted to be performed by Intermediate Holdco pursuant to Section
9.01(j)) or liabilities (other than under this Agreement and the other Documents
to which it is a party (including the Intermediate Holdco Credit Documents and
the ABL Credit Documents) and those liabilities permitted to be incurred by
Intermediate Holdco pursuant to Section 9.01(j)).
(d) Corporate Holdco has no significant assets (other than immaterial
assets used for the performance of those activities permitted to be performed by
Corporate Holdco pursuant to Section 9.01(k)) or liabilities (other than under
this Agreement and the other Documents to which it is a party (including the
Intermediate Holdco Credit Documents and the ABL Credit Documents) and those
liabilities permitted to be incurred by Corporate Holdco pursuant to Section
9.01(k)).
7.25 Subordination. (a) The subordination provisions contained in the
Existing Senior Notes Documents and, on and after the execution and delivery
thereof, the Permitted Senior Notes Documents and the Permitted Refinancing
Senior Notes Documents are enforceable against (i) the U.S. Subsidiary
Guarantors party thereto, (ii) in the case of any Permitted Senior Notes
Document or Permitted Refinancing Senior Notes Document providing for
subordination of the U.S. Borrower's obligations thereunder, the U.S. Borrower
and (iii) the holders of the Existing Senior Notes, the Permitted Senior Notes
or the Permitted Refinancing Senior Notes, as the case may be. All Guaranteed
Obligations (as defined in the U.S. Subsidiaries Guaranty) of the U.S.
Subsidiary Guarantors and, in the case of any Permitted Senior Notes Document or
Permitted Refinancing Senior Notes Document providing for subordination of the
U.S. Borrower's obligations thereunder, all Obligations of the Borrower under
the Credit Documents to which it is a party, are within the definitions of
"Guarantor Senior Debt" and "Designated Guarantor Senior Debt" or "Senior Debt"
and "Designated Senior Debt", as applicable, included in such subordination
provisions.
(b) On and after the execution and delivery of the Shareholder
Subordinated Notes, the subordination provisions contained therein will be
enforceable against Holdings and the holders of the Shareholder Subordinated
Notes, and all Obligations of Holdings hereunder
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and under the other Credit Documents to which it is a party are within the
definitions of "Senior Debt" included in such subordination provisions.
Section 8. Affirmative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Restatement Effective Date and thereafter
for so long as this Agreement is in effect and until the Total Commitment and
all Letters of Credit and Bank Guaranties have been terminated, and the Loans,
Notes and Unpaid Drawings and Unreimbursed Payments, together with interest,
Fees and all other Obligations (other than any indemnities described in Section
13.13 which are not then due and payable) incurred hereunder, are paid in full:
8.01 Information Covenants. Holdings or the U.S. Borrower will
furnish, or will cause to be furnished, to the Administrative Agent (who shall
furnish to each Lender):
(a) Quarterly Financial Statements. Within 3 Business Days following
the 45th day after the close of the first three quarterly accounting
periods in each Fiscal Year of the U.S. Borrower, (i) (x) the consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries as at
the end of such quarterly accounting period and the related consolidated
statements of income and of cash flows for such quarterly accounting period
and for the elapsed portion of the Fiscal Year ended with the last day of
such quarterly accounting period, in each case setting forth comparative
figures for the corresponding quarterly accounting period in the prior
Fiscal Year and the budgeted figures for such quarterly period as set forth
in the respective financial projections theretofore delivered pursuant to
Section 8.01(c), (y) the consolidated balance sheet of each Business
Segment as at the end of such quarterly accounting period and the related
consolidated statement of income of such Business Segment for such
quarterly accounting period and for the elapsed portion of the Fiscal Year
ended with the last day of such quarterly accounting period, in each case
setting forth comparative figures for the corresponding quarterly
accounting period in the prior Fiscal Year, and (z) the consolidated
balance sheets of the U.S. ββββ Group and the Non-U.S. ββββ Group as at the
end of such quarterly accounting period and the related consolidated
statements of income of each such group for such quarterly accounting
period and for the elapsed portion of the Fiscal Year ended with the last
day of such quarterly accounting period, all of the foregoing of which
shall be in reasonable detail and, in the case of the financial statements
described in subclause (x) above, be certified by the senior financial
officer or other Authorized Officer of Holdings or the U.S. Borrower that
they fairly present in all material respects in accordance with U.S. GAAP
the financial condition of the U.S. Borrower and its Consolidated
Subsidiaries as of the dates indicated and the results of their operations
and/or changes in their cash flows for the periods indicated, subject to
normal year-end audit adjustments and the absence of footnotes and (ii)
management's discussion and analysis of the important operational and
financial developments during such quarterly accounting period; provided,
however, that for any quarterly accounting period for which the U.S.
Borrower has filed a Form 10-Q Report with the SEC and the Chief Financial
Officer or other Authorized Officer of Holdings has delivered to the
Administrative Agent a certificate certifying that the Parent Business
Condition has been satisfied for such quarterly accounting period, the
furnishing of (I) the U.S. Borrower's Form 10-Q Report filed with the SEC
for such quarterly accounting period and (II) the
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consolidated balance sheet of each Business Segment as at the end of such
quarterly accounting period and the related consolidated statement of
income of such Business Segment for such quarterly accounting period, shall
satisfy the requirements of subclause (i) and (ii) of this Section 8.01(a).
(b) Annual Financial Statements. Within 3 Business Days following the
90th day after the close of each Fiscal Year of the U.S. Borrower (or, in
the case of the Fiscal Year of the U.S. Borrower ended December 31, 2005,
on the date on which the Credit Agreement Parties shall have filed a Form
10-K Report with the SEC for such Fiscal Year (and, in any event, no later
than April 28, 2006)), (i) (x) the consolidated balance sheet of the U.S.
Borrower and its Consolidated Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income and stockholders'
equity and of cash flows for such Fiscal Year and setting forth comparative
consolidated figures for the preceding Fiscal Year and comparable budgeted
figures for such Fiscal Year as set forth in the respective financial
projections delivered pursuant to Section 8.01(c), (y) the consolidated
balance sheet of each Business Segment as at the end of such Fiscal Year
and the related consolidated statements of income of each Business Segment
for such Fiscal Year and setting forth comparative consolidated figures for
the preceding Fiscal Year and (z) the consolidated balance sheet of each of
the U.S. ββββ Group and the Non-U.S. ββββ Group as at the end of such
Fiscal Year and the related consolidated statements of income of each such
group for such Fiscal Year and setting forth comparative consolidated
figures for the preceding Fiscal Year, (ii) in the case of the financial
statements referred to in subclause (i)(x) above (except for such
comparable budgeted figures), together with a certification by Deloitte &
Touche LLP or such other independent certified public accountants of
recognized national standing as shall be acceptable to the Administrative
Agent, in each case to the effect that (I) such statements fairly present
in all material respects the financial condition of the U.S. Borrower and
its Consolidated Subsidiaries as of the dates indicated and the results of
their operations and changes in financial position for the periods
indicated in conformity with U.S. GAAP applied on a basis consistent with
prior years and (II) in the course of its regular audit of the business of
the U.S. Borrower and its Consolidated Subsidiaries, which audit was
conducted in accordance with U.S. GAAP (and made without qualification or
expression of uncertainty, in each case as to going concern), no Default or
Event of Default which has occurred and is continuing has come to their
attention or, if such a Default or an Event of Default has come to their
attention, a statement as to the nature thereof and (iii) management's
discussion and analysis of the important operational and financial
developments during such Fiscal Year; provided, however, that for any
Fiscal Year for which the U.S. Borrower has filed a Form 10-K Report with
the SEC and the Chief Financial Officer or other Authorized Officer of
Holdings has delivered to the Administrative Agent a certificate (x)
certifying that the Parent Business Condition has been satisfied during
such Fiscal Year and (y) setting forth the aggregate amount of Dividends
paid to Intermediate Holdco by the U.S. Borrower during such Fiscal Year
pursuant to Sections 9.06(iii), (iv), (v) and (ix), the furnishing of (I)
the U.S. Borrower's Form 10-K Report filed with the SEC for such Fiscal
Year and (II) the consolidated balance sheet of each Business Segment as at
the end of such Fiscal Year and the related consolidated statement of
income of such Business Segment for such Fiscal Year, shall satisfy the
requirements of subclause (i) and (iii) of this Section 8.01(b).
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(c) Financial Projections, etc. Not more than 60 days after the
commencement of each Fiscal Year of the U.S. Borrower, financial
projections in form reasonably satisfactory to the Administrative Agent
(including projected statements of income, sources and uses of cash and
balance sheets, taking into account any Significant Asset Sales intended to
be consummated during such Fiscal Year) prepared by the U.S. Borrower (i)
for each of the four Fiscal Quarters of such Fiscal Year prepared in detail
and (ii) for each of the immediately succeeding two Fiscal Years prepared
in summary form, in each case, on a consolidated basis, for the U.S.
Borrower and its Consolidated Subsidiaries and setting forth, with
appropriate discussion, the principal assumptions upon which such financial
projections are based.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b) for each
Fiscal Year ended on or after the Restatement Effective Date, a certificate
of the Chief Financial Officer or other Authorized Officer of the U.S.
Borrower to the effect that no Default or Event of Default exists or, if
any Default or Event of Default does exist, specifying the nature and
extent thereof, which certificate shall (i) if delivered in connection with
the financial statements required by Section 8.01(a) or (b), set forth in
reasonable detail (x) the calculations required to establish whether
Holdings and its Subsidiaries were in compliance with the provisions of
Sections 3.03(e) and (f), 4.02, 9.02, 9.04, 9.05 and 9.06 and (y) the
calculation of the Senior Secured Leverage Ratio as at the last day of the
respective Fiscal Quarter or Fiscal Year of the U.S. Borrower, as the case
may be, (ii) if delivered with the financial statements required by Section
8.01(b), set forth in reasonable detail (x) the amount of (and the
calculations required to establish the amount of) Excess Cash Flow and
Adjusted Excess Cash Flow for the respective Excess Cash Flow Payment
Period, (y) the amount required to be paid pursuant to Section 4.02(f) on
the relevant Excess Cash Payment Date and (z) the calculation of the Total
Leverage Ratio as at the last day of the respective Fiscal Year of the U.S.
Borrower, and (iii) certify that there have been no changes to Annexes A
through G of the U.S. Security Agreement, Annexes A through G of the U.S.
Pledge Agreement and the annexes or schedules to any other Security
Document, in each case since the Restatement Effective Date or, if later,
since the date of the most recent certificate delivered pursuant to this
Section 8.01(d), or if there have been any such changes, a list in
reasonable detail of such changes (but, in each case with respect to this
clause (iii), only to the extent that such changes are required to be
reported to the Collateral Agent pursuant to the terms of such Security
Documents) and whether the Credit Agreement Parties and the other Credit
Parties have otherwise taken all actions required to be taken by them
pursuant to such Security Documents in connection with any such changes.
(e) Notice of Default or Litigation. Promptly, and in any event within
five Business Days after a Senior Officer obtains knowledge thereof, notice
of (i) the occurrence of any event which constitutes a Default or an Event
of Default, which notice shall specify the nature and period of existence
thereof and what action Holdings or such Subsidiary proposes to take with
respect thereto, (ii) any litigation or proceeding pending or threatened
(x) against Holdings or any of its Subsidiaries which has had, or could
reasonably be expected to have, a Material Adverse Effect or (y) with
respect to any ABL Credit Document, any Existing Senior Notes Document, any
Intermediate Holdco Credit
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Document, any Wellbeing Project Financing Document or, on and after the
execution and delivery thereof, any Permitted Senior Notes Document or any
Permitted Refinancing Senior Notes Document, (iii) any Material
Governmental Investigation pending or threatened against Holdings or any of
its Subsidiaries and (iv) any other event, change or circumstance which has
had, or could reasonably be expected to have, a Material Adverse Effect.
(f) Management Letters. Promptly upon receipt thereof, a copy of any
"management letter" submitted to Holdings or any of its Subsidiaries by its
independent accountants in connection with any annual, interim or special
audit made by them of the financial statements of Holdings or any of its
Subsidiaries and management's responses thereto.
(g) Environmental Matters. Within five Business Days after a Senior
Officer obtains knowledge of any of the following (but only to the extent
that any of the following, either individually or in the aggregate, has
had, or could reasonably be expected to have, (a) a Material Adverse Effect
or (b) a remedial cost to Holdings or any of its Subsidiaries in excess of
$15,000,000), written notice of:
(i) any pending or threatened Environmental Claim against
Holdings or any of its Subsidiaries or any Real Property owned, leased
or operated by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries that (x)
results in noncompliance by Holdings or any of its Subsidiaries with
any applicable Environmental Law or (y) could reasonably be
anticipated to form the basis of an Environmental Claim against
Holdings or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned,
leased or operated by Holdings or any of its Subsidiaries that could
reasonably be anticipated to cause such Real Property to be subject to
any restrictions on the ownership, lease, occupancy, use or
transferability by Holdings or such Subsidiary, as the case may be, of
its interest in such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by Holdings or any of its
Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and Holdings' response or proposed response thereto. In addition, the U.S
Borrower agrees to provide the Lenders (by delivery to the Administrative
Agent) with copies of such detailed reports relating to any of the matters
set forth in clauses (i)-(iv) above as may reasonably be requested by the
Administrative Agent or any Lender.
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(h) Reports. Within 3 Business Days following transmission thereof,
copies of any filings and registrations with, and reports to, the SEC by
Holdings or any of its Subsidiaries and copies of all financial statements,
proxy statements, notices and reports as Holdings or any of its
Subsidiaries shall send generally to the holders of Indebtedness or
(following the public issuance of Equity Interests of Holdings or any of
its Subsidiaries) their Equity Interests in their capacity as such holders
(to the extent not theretofore delivered to the Lenders pursuant to this
Agreement).
(i) New Subsidiaries; etc. Within 3 Business Days after the 45th day
following the close of each of the first three Fiscal Quarters of each
Fiscal Year of Holdings and within 3 Business Days after the 45th day
following the close of each Fiscal Year of Holdings, (w) a list showing
each Material Foreign Subsidiary of Holdings which has not theretofore
become party to the Foreign Subsidiaries Guaranty or any Security Document,
(x) a list showing each Subsidiary of Holdings established, created or
acquired during the respective Fiscal Quarter or Fiscal Year (and
specifying whether such Subsidiary is a Material Foreign Subsidiary), and
each Subsidiary which has had any Equity Interests transferred during the
respective Fiscal Quarter or Fiscal Year (in each case describing in
reasonable detail the respective transfer of Equity Interests), in each
case naming the direct owner of all Equity Interests in such Subsidiary and
describing such Equity Interests in reasonable detail, and certifying that
each such Subsidiary, and each Credit Party which owns any Equity Interests
therein, has taken all actions, if any, required pursuant to Sections 8.11
and 9.11 and the relevant Security Documents and certifying Holdings'
compliance with the provisions of Section 8.18, (y) a list of each Domestic
Subsidiary of Holdings, if any, which has not been transferred to Holdings
or one or more Qualified U.S. Obligors pursuant to the requirements of
Section 8.18(a) (by virtue of the first proviso to the second sentence of
said Section 8.18(a)), and specifically stating the reasons therefor and
(z) a list of each Foreign Subsidiary organized under any Qualified
Non-U.S. Jurisdiction, if any, which has not been transferred to one or
more Qualified Non-U.S. Obligors pursuant to the requirements of Section
8.18(b) (by reason of the first proviso to the first sentence of said
Section 8.18(b)), and specifically stating the reasons therefor.
(j) Annual Meetings with Lenders. At the request of the Administrative
Agent, Holdings shall, within 120 days after the close of each Fiscal Year
of the U.S. Borrower, hold a meeting (which may be by conference call or
teleconference), at a time and place selected by Holdings and reasonably
acceptable to the Administrative Agent, with all of the Lenders that choose
to participate, to review the financial results of the previous Fiscal Year
and the financial condition of the U.S. Borrower and its Subsidiaries and
the budgets presented for the current Fiscal Year of the U.S. Borrower and
its Subsidiaries.
(k) Notice of Commitment Reductions and Mandatory Repayments. On or
prior to the date of any reduction to Commitments or any mandatory
repayment of outstanding Term Loans pursuant to Sections 4.02(c) through
(f), inclusive, Holdings or the U.S. Borrower shall provide written notice
of the amount of the respective reduction or repayment, as the case may be,
to the Commitments or the outstanding Term Loans, as applicable, and the
calculations therefor (in reasonable detail).
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(l) Hedging Agreements. At the time of the delivery of the financial
statements provided for in Section 8.01(b), a schedule of all Interest Rate
Protection Agreements and Other Hedging Agreements entered into by Holdings
or any of its Subsidiaries with any Lender and/or any of its affiliates.
(m) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings or its
Subsidiaries as the Administrative Agent or any Lender may reasonably
request; provided that the tax opinion delivered by Deloitte & Touche LLP
referenced in Section 8.01(n) of the Original Credit Agreement shall only
be made available for review by any Lender requesting same at the
headquarters of Holdings.
(n) Compliance with Section 13.27. On or prior to the 90th day after
the Restatement Effective Date (or such later date as the Administrative
Agent shall determine), an appropriate officer in the legal department of
Holdings or the U.S. Borrower shall provide a written certification of
compliance with all post-closing requirements set forth in Section 13.27
(including those actions required pursuant to Schedule XVIII), specifically
listing any items where such compliance has not yet occurred (and, with
respect to any such items where compliance has not yet occurred, stating
the time frame in which it is expected that such actions shall be taken and
the reasons such actions have not been completed). Without excusing any
failure to comply with Section 13.27, if the certification provided above
does not establish complete compliance with all requirements of Section
13.27 (and Schedule XVIII), Holdings or the U.S. Borrower shall cause an
appropriate officer in its legal department to furnish monthly updates
thereafter, in each case showing in reasonable detail all compliances (and
any non-compliances) with the requirements of Section 13.27. Such
certifications shall no longer be required after the date upon which
Holdings or the U.S. Borrower certifies that all actions required be taken
pursuant to Section 13.27 (and Schedule XVIII) have been completed.
8.02 Books, Records and Inspections. Each Credit Agreement Party will,
and will cause each of its Subsidiaries to, keep proper books of record and
accounts in which full, true and correct entries which permit the preparation of
financial statements in accordance with U.S. GAAP and which conform to all
requirements of law, shall be made of all dealings and transactions in relation
to its business and activities. Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, permit officers and designated representatives of
any Agent or, if any Specified Default or any Event of Default then exists, any
Lender, to visit and inspect, under guidance of officers of such Credit
Agreement Party or such Subsidiary, any of the properties of such Credit
Agreement Party or such Subsidiary, and to examine the books of account of such
Credit Agreement Party or such Subsidiary and discuss the affairs, finances and
accounts of such Credit Agreement Party or such Subsidiary with, and be advised
as to the same by, its and their officers and independent accountants, all upon
reasonable prior notice and at such reasonable times and intervals and to such
reasonable extent as such Agent or such Lender may reasonably request.
8.03 Insurance. (a) Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, (i) maintain, with financially sound and reputable
insurance companies,
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insurance on all its property in at least such amounts and against at least such
risks as is consistent and in accordance with industry practice and (ii) furnish
to the Administrative Agent, upon request by the Administrative Agent or any
Lender, full information as to the insurance carried. Such insurance shall in
any event include physical damage insurance on all real and personal property
(whether now owned or hereafter acquired) on an all risk basis and business
interruption insurance.
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at all times keep the respective property of such Credit
Agreement Party and its Subsidiaries insured in favor of the Collateral Agent,
and all policies or certificates with respect to such insurance (and any other
insurance maintained by, or on behalf of, any Credit Agreement Party or any of
its Subsidiaries) (i) shall be endorsed to the Collateral Agent's satisfaction
for the benefit of the Collateral Agent (including, without limitation, by
naming the Collateral Agent as certificate holder, mortgagee and loss payee with
respect to real property, certificate holder and loss payee with respect to
personal property, additional insured with respect to general liability and
umbrella liability coverage and certificate holder with respect to workers'
compensation insurance), (ii) shall state that such insurance policies shall not
be canceled or materially changed without at least 30 days' prior written notice
thereof by the respective insurer to the Collateral Agent and (iii) shall be
deposited with the Collateral Agent.
(c) If any Credit Agreement Party or any of its Subsidiaries shall
fail to maintain all insurance in accordance with this Section 8.03, or if any
Credit Agreement Party or any of its Subsidiaries shall fail to so name the
Collateral Agent as an additional insured, mortgagee or loss payee, as the case
may be, or so deposit all certificates with respect thereto, the Administrative
Agent and/or the Collateral Agent shall have the right (but shall be under no
obligation), upon ten Business Days' notice to Holdings or the U.S. Borrower, to
procure such insurance, and the Credit Agreement Parties agree jointly and
severally to reimburse the Administrative Agent or the Collateral Agent, as the
case may be, for all costs and expenses of procuring such insurance.
8.04 Payment of Taxes. Each Credit Agreement Party will pay and
discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, in each case on a
timely basis, and all lawful claims which, if unpaid, might become a lien or
charge upon any properties of the Credit Agreement Parties or any of their
Subsidiaries not otherwise permitted under Section 9.03(i); provided that no
Credit Agreement Party or any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with U.S. GAAP.
8.05 Existence; Franchises. Each Credit Agreement Party will do, and
will cause each of its Subsidiaries to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence and its
material rights, franchises, authorities to do business, licenses,
certifications, accreditations and patents; provided, however, that nothing in
this Section 8.05 shall prevent (i) sales of assets and other transactions by
Holdings or any of its Subsidiaries in accordance with Section 9.02, (ii) the
withdrawal by Holdings or any of its Subsidiaries of its qualification as a
foreign corporation, partnership or limited liability company,
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as the case may be, in any jurisdiction where such withdrawal could not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or (iii) the dissolution of the Excluded Domestic Subsidiary or
any Excluded Foreign Subsidiary.
8.06 Compliance with Statutes; etc. (a) Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliances as,
individually or in the aggregate, have not had, and could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) Within 5 Business Days after each Credit Agreement Party is
required by applicable law, statute, rule or regulation, such Credit Agreement
Party shall file (or cause to be filed) with the SEC all reports, financial
information and certifications required by applicable law, statute, rule or
regulation.
8.07 Compliance with Environmental Laws. (a) (i) Each Credit Agreement
Party will comply, and will cause each of its Subsidiaries to comply, in all
material respects with all Environmental Laws applicable to the ownership or use
of its Real Property and vessels now or hereafter owned, leased or operated by
such Credit Agreement Party or any of its Subsidiaries, will promptly pay or
cause to be paid all costs and expenses incurred in connection with such
compliance, and will keep or cause to be kept all such Real Property and vessels
free and clear of any Liens imposed pursuant to such Environmental Laws and (ii)
neither any Credit Agreement Party nor any of its Subsidiaries will generate,
use, treat, store, Release or dispose of, or permit the generation, use,
treatment, storage, Release or disposal of, Hazardous Materials on any Real
Property or vessels owned, leased or operated by such Credit Agreement Party or
any of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except as required in the ordinary
course of business of Holdings and its Subsidiaries as conducted on the Original
Effective Date and as allowed by (and in compliance with) applicable law or
regulation and except for any failures to comply with the requirements specified
in clause (i) or (ii) above, which, either individually or in the aggregate,
have not had, and could not reasonably be expected to have, a Material Adverse
Effect. If Holdings or any of its Subsidiaries, or any tenant or occupant of any
Real Property or vessel owned, leased or operated by Holdings or any of its
Subsidiaries, causes or permits any intentional or unintentional act or omission
resulting in the presence or Release of any Hazardous Material (except in
compliance with applicable Environmental Laws), each Credit Agreement Party
agrees to undertake, and/or to cause any of its Subsidiaries, tenants or
occupants to undertake, at their sole expense, any clean up, removal, remedial
or other action required pursuant to Environmental Laws to remove and clean up
any Hazardous Materials from any Real Property or vessel except where the
failure to do so has not had, and could not reasonably be expected to have, a
Material Adverse Effect.
(b) At the written request of the Administrative Agent or the Required
Lenders, which request shall specify in reasonable detail the basis therefor
(which may not simply be a desire for periodic review), at any time and from
time to time, the Credit Agreement Parties will provide, at their sole cost and
expense, an environmental site assessment report concerning any Real Property
now or hereafter owned, leased or operated by Holdings or any of
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its Subsidiaries, prepared by an environmental consulting firm reasonably
approved by the Administrative Agent, addressing the matters which gave rise to
such request and estimating the potential costs of any removal, remedial or
other corrective action in connection with any such matter. If a Credit
Agreement Party fails to provide the same within 45 days after such request was
made, the Administrative Agent may order the same, and the Credit Agreement
Parties shall grant and hereby do grant, to the Administrative Agent and the
Lenders and their agents, access to such Real Property and specifically grant
the Administrative Agent and the Lenders and their agents an irrevocable
non-exclusive license, subject to the right of tenants, to undertake such an
assessment, all at the Credit Agreement Parties' joint and several expense.
8.08 ERISA. As soon as possible and, in any event, within twenty (20)
Business Days after Holdings, any Subsidiary of Holdings or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, Holdings
will deliver to the Administrative Agent written notice of the chief financial
officer, vice president of human resources or other Authorized Officer of the
U.S. Borrower setting forth, to the extent known, and in reasonable detail, such
occurrence and the action, if any, that Holdings, such Subsidiary or such ERISA
Affiliate is required or proposes to take, together with any notices required or
proposed to be given to or filed by Holdings, such Subsidiary, the Plan
administrator or such ERISA Affiliate to or with, the PBGC or any other
governmental agency, or a Plan or Multiemployer Plan participant, and any
notices received by Holdings, such Subsidiary or ERISA Affiliate from the PBGC
or other governmental agency or a Plan or Multiemployer Plan participant or the
Plan administrator with respect thereto: that a Reportable Event has occurred
(except to the extent that Holdings has previously delivered to the
Administrative Agent a notice (if any) concerning such event pursuant to the
next clause hereof); that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or
Multiemployer Plan or Foreign Pension Plan has been made more than sixty (60)
days late; that a Plan or Multiemployer Plan has been or may be involuntarily
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan or Multiemployer Plan has a material Unfunded Current
Liability; that involuntary proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan which is subject to Title IV
of ERISA; that an involuntary proceeding has been instituted pursuant to Section
515 of ERISA to collect a delinquent contribution to a Plan or Multiemployer
Plan; that Holdings, any Subsidiary of Holdings or any ERISA Affiliate will or
may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan or Multiemployer Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan or Multiemployer Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of
ERISA or with respect to a group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or
that Holdings
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or any Subsidiary of Holdings may incur any liability pursuant to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) that provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan or any Foreign Pension Plan in addition to
the liability that existed on the Restatement Effective Date pursuant to any
such plan or plans by an amount that would be material to Holdings or any
Subsidiary of Holdings. To the extent that the financial statements set forth
with particularity a liability for which notice would otherwise be required to
be given hereunder, a separate notice thereof shall not be required hereunder.
At the request of the Administrative Agent, Holdings and the U.S. Borrower will
deliver to the Administrative Agent copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. Holdings and the U.S. Borrower will also deliver upon
written request to the Administrative Agent a complete copy of the annual report
(on Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information) required
to be filed with the Internal Revenue Service. In addition to any notices
delivered to the Administrative Agent pursuant to the first sentence hereof,
copies of annual reports and any records, documents or other information
required to be furnished to the PBGC or any other government agency, and any
material notices received by Holdings, any Subsidiary of Holdings or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan or received from any
government agency or plan administrator or sponsor or trustee with respect to
any Multiemployer Plan, shall, upon request of the Administrative Agent, be
delivered to the Administrative Agent no later than twenty (20) Business Days
after the date of such request. Holdings and each of its applicable Subsidiaries
shall ensure that all Foreign Pension Plans administered by it or into which it
makes payments obtain or retain (as applicable) registered status under and as
required by applicable law and is administered in a timely manner in all
respects in compliance with all applicable laws except where the failure to do
any of the foregoing has not had, and could not reasonably be expected to have,
a Material Adverse Effect.
8.09 Good Repair. Each Credit Agreement Party will, and will cause
each of its Subsidiaries to, ensure that its material properties and equipment
required to be used in its business are kept in reasonably good repair, working
order and condition, ordinary wear and tear excepted, and that from time to time
there are made in such properties and equipment all needful and proper repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto, to the extent and in the manner useful or customary for companies in
similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. Each Credit Agreement Party
will cause (i) each of its, and each of its Subsidiaries', fiscal years to end
on the Saturday closest to December 31 of each calendar year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on the last day of
each period described in the definition of "Fiscal Quarter"; provided that
Foreign Subsidiaries of Holdings (other than the Bermuda Borrower and the
Bermuda Partnership) shall not be required to maintain the fiscal year and
fiscal quarter ends described above if it is not practicable for such Foreign
Subsidiary to maintain same as a result of foreign statutes, rules or law
applicable to such Foreign Subsidiary.
8.11 Additional Security; Additional Guaranties; Actions with Respect
to Non-Guarantor Subsidiaries; Further Assurances. (a) Each Credit Agreement
Party will, and will cause its Subsidiaries which are Credit Agreement Parties
or Subsidiary Guarantors to, grant
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to the Collateral Agent security interests and mortgages (each, an "Additional
Mortgage") in: (i) each vessel acquired by such Person after the Initial
Borrowing Date and having a value (for such purpose, using the initial purchase
price paid by such Person for such vessel) in excess of $5,000,000, (ii) such
fee-owned (or the equivalent) Real Property acquired by such Person after the
Initial Borrowing Date and having a value (for such purpose, using the initial
purchase price paid by such Person for such Real Property) in excess of
$10,000,000 which is not covered by the original Mortgages or Foreign Security
Agreements, as appropriate and (iii) such Leasehold Properties to which a
respective landlord has granted its consent to the delivery of a Mortgage over
such Leasehold Properties (each such Real Property referred to in preceding
clause (ii) and this clause (iii), an "Additional Mortgaged Property");
provided, however that if the aggregate value of all Second-Tier Material Real
Properties (for such purpose, using the initial purchase price paid by such
Person for the respective Second-Tier Material Real Property) acquired by such
Persons after the Initial Borrowing Date which are not then covered by Mortgages
or Foreign Security Agreements, as appropriate, equals or exceeds $20,000,000,
each Credit Agreement Party and each Subsidiary Guarantor shall grant to the
Collateral Agent security interests and mortgages in all such Second-Tier
Material Real Properties owned by any such Person which are not then covered by
Mortgages or Foreign Security Agreements, as appropriate (and not just those
required to reduce the aggregate value of all Second-Tier Material Real
Properties (determined as provided above) at such time below $20,000,000). All
such Additional Mortgages shall be granted pursuant to documentation
substantially in the form of a relevant existing Mortgage (or, in the case of
Additional Mortgaged Properties located in a jurisdiction outside the United
States, the relevant Foreign Security Agreement covering Real Property located
in such jurisdiction (if any) delivered to the Administrative Agent on the
Initial Borrowing Date) or in such other form as is reasonably satisfactory to
the Administrative Agent. All such Additional Mortgages shall constitute valid
and enforceable first priority perfected Liens, superior to and prior to the
rights of all third Persons and subject to no other Liens (except as are
permitted by Section 9.03), in favor of the Collateral Agent (or such other
trustee or sub-agent as may be required or desired under local law). The
Additional Mortgages or instruments related thereto shall be duly recorded or
filed in such manner and in such places as are required by law to create,
maintain, effect, perfect, preserve, maintain and protect the Liens in favor of
the Collateral Agent required to be granted pursuant to the Additional Mortgages
and all taxes, fees and other charges payable in connection therewith shall be
paid in full. Notwithstanding any "after-acquired property" covenant contained
in any Foreign Security Document requiring the grant of a mortgage in
"after-acquired" Real Property of any Foreign Credit Party in favor of the
Collateral Agent, no Foreign Credit Party shall be required to grant to the
Collateral Agent an Additional Mortgage in any Real Property of such Foreign
Credit Party acquired after the Initial Borrowing Date as otherwise required by
the respective Foreign Security Document unless and until the grant of such
Additional Mortgage would otherwise be required pursuant to the terms of this
Section 8.11(a).
(b) Each Credit Agreement Party will, and will cause each of its
Subsidiaries to, at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, confirmatory conveyances,
financing statements, transfer endorsements, confirmatory powers of attorney,
certificates, reports and other assurances or confirmatory instruments and take
such further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require pursuant to this
Section 8.11. Furthermore, each Credit
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Agreement Party will cause to be delivered to the Collateral Agent such opinions
of counsel and other related documents as may be reasonably requested by the
Collateral Agent to assure itself that this Section 8.11 has been complied with.
(c) Subject to the provisions of following clauses (g) and (h), if (w)
at any time any Domestic Subsidiary of Holdings is created, established or
acquired, such Subsidiary shall be required to execute and deliver counterparts
of the U.S. Subsidiaries Guaranty, the Intercompany Subordination Agreement, the
Intercreditor Agreement and such Security Documents as would have been entered
into by the respective Subsidiary if same had been a U.S. Subsidiary Guarantor
under the Original Credit Agreement on the Initial Borrowing Date (with
appropriate changes to reflect the amendment and restatement of this Agreement
on the Restatement Effective Date and any subsequent modification hereto), and
in each case shall take all action in connection therewith as would otherwise
have been required to be taken pursuant to Section 5 of the Original Credit
Agreement if such Subsidiary had been a U.S. Subsidiary Guarantor under the
Original Credit Agreement on the Initial Borrowing Date, (x) at any time any
Subsidiary of Holdings organized under the laws of any Qualified Non-U.S.
Jurisdiction is created, established or acquired, such Subsidiary shall be
required to execute and deliver counterparts of the Foreign Subsidiaries
Guaranty, the Intercompany Subordination Agreement and such Security Documents
as would have been entered into by the respective Subsidiary if same had been a
Foreign Subsidiary Guarantor under the Original Credit Agreement on the Initial
Borrowing Date (with appropriate changes to reflect the amendment and
restatement of this Agreement on the Restatement Effective Date and any
subsequent modification hereto) (determined in accordance with the criteria
described in Sections 5.15, 5.17 and 5.18(b) of the Original Credit Agreement),
and in each case shall take all action in connection therewith as would
otherwise have been required to be taken pursuant to Section 5 of the Original
Credit Agreement if such Subsidiary had been a Foreign Subsidiary Guarantor
under the Original Credit Agreement on the Initial Borrowing Date (with
appropriate changes to reflect the amendment and restatement of this Agreement
on the Restatement Effective Date and any subsequent modification hereto), (y)
at any time any Subsidiary of Holdings organized under the laws of any
Non-Qualified Jurisdiction in which a Foreign Subsidiary Guarantor under the
Original Credit Agreement was organized on the Initial Borrowing Date is
created, established or acquired, such Subsidiary shall be required to execute
and deliver counterparts of the Foreign Subsidiaries Guaranty and, in each case,
unless the Administrative Agent otherwise agrees based on advice of local
counsel, the Intercompany Subordination Agreement and such Security Documents as
would have been entered into by the respective Subsidiary if same had been a
Foreign Subsidiary Guarantor under the Original Credit Agreement organized under
the laws of such Non-Qualified Jurisdiction on the Initial Borrowing Date (with
appropriate changes to reflect the amendment and restatement of this Agreement
on the Restatement Effective Date and any subsequent modification hereto)
(determined in accordance with the criteria described in Sections 5.15, 5.17 and
5.18(b) of the Original Credit Agreement), and in each case shall take all
action in connection therewith as would otherwise have been required to be taken
pursuant to Section 5 of the Original Credit Agreement if such Subsidiary had
been a Foreign Subsidiary Guarantor under the Original Credit Agreement
organized under the laws of such Non-Qualified Jurisdiction on the Initial
Borrowing Date (with appropriate changes to reflect the amendment and
restatement of this Agreement on the Restatement Effective Date and any
subsequent modification hereto) and (z) if at any time after the Initial
Borrowing Date any jurisdiction is added to the list of Qualified Jurisdictions
in accordance with the definition thereof contained herein, then at the
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time of such designation each Foreign Subsidiary of Holdings organized under the
laws of such Qualified Jurisdiction (with such exceptions as may be satisfactory
to the Administrative Agent or the Required Lenders) shall be required to become
a Foreign Subsidiary Guarantor and take all actions specified in preceding
clause (x). Furthermore, subject to the provisions of Section 8.11(h), the
Administrative Agent or the Required Lenders may at any time request that one or
more Subsidiaries of Holdings organized under the laws of one or more
jurisdictions which are not Qualified Jurisdictions become Foreign Subsidiary
Guarantors, in which case the Credit Agreement Parties shall cause each such
Subsidiary which has been specifically requested to become a Foreign Subsidiary
Guarantor to take all actions as are specified in clause (x) of the immediately
preceding sentence, provided that no Subsidiary of Holdings shall be required to
take such actions if, and to the extent that, based upon written advice of local
counsel reasonably satisfactory to the Administrative Agent, Holdings and/or
such Subsidiary concludes that the taking of such actions would violate the laws
of the jurisdiction in which the respective Subsidiary is organized, provided,
further, that if steps (such as limiting the amount guaranteed) can be taken so
that such violation would not exist, then if requested by the Administrative
Agent or the Required Lenders, the respective Subsidiary shall enter into a
modified Foreign Subsidiaries Guaranty which provides, to the maximum extent
permissible under applicable law, as many of the benefits as are provided
pursuant to the Foreign Subsidiaries Guaranty executed and delivered on the
Initial Borrowing Date as is possible.
(d) In addition to the requirements contained in the Pledge
Agreements, each Credit Agreement Party agrees to pledge and deliver, or cause
to be pledged and delivered, all of the Equity Interests owned by any Credit
Party of each new Unrestricted Subsidiary of Holdings established or created
(and each Subsidiary of Holdings which becomes an Unrestricted Subsidiary) after
the Initial Borrowing Date to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreements, provided that, subject to
the provisions of Section 8.12, in the case of any Foreign Unrestricted
Subsidiary that is a corporation (or treated as such for U.S. tax purposes)
which is owned by a U.S. Credit Party, not more than 65% of the total
outstanding voting Equity Interests of such Person shall be required to be
pledged in support of such U.S. Credit Party's obligations (x) as a Borrower
under the Credit Agreement (in the case of the U.S. Borrower) or (y) under its
Guaranty in respect of the Obligations of the U.S. Borrower (in the case of the
other U.S. Credit Parties).
(e) Following any request by the Administrative Agent or the Required
Lenders, Holdings or any of its Subsidiaries, shall, to the maximum extent
permitted by applicable law (but subject to the proviso to preceding Section
8.11(d), to the extent applicable), (x) grant security interests in such of
their Property (other than Excluded Collateral) as may be requested by the
Administrative Agent or the Required Lenders, as the case may be, in which
perfected security interests do not already exist pursuant to the Security
Documents theretofore executed and delivered and, in connection therewith, the
Credit Agreement Parties shall, or shall cause the relevant Subsidiaries of
Holdings to, execute and deliver counterparts of (and thereby become parties to)
the Intercreditor Agreement (in the case of any U.S. Credit Party), the
applicable Security Documents and/or Additional Security Documents, in each case
in form and substance reasonably satisfactory to the Administrative Agent, (y)
with respect to pledges of Equity Interests of, or promissory notes issued by,
Persons described in Section 13.19(a), take such action (including, without
limitation, the execution of Additional Security Documents, the making of
filings, etc.) under the local law of the Person whose Equity Interests or
promissory
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notes are pledged as may be requested in order to create, preserve, protect or
perfect security interests in such Equity Interests and/or promissory notes
and/or (z) with respect to each Foreign Security Document described in Section
13.19(b), take such action (including, without limitation, amending, modifying
or supplementing such Foreign Security Document, etc.) under the local law of
each Credit Party party to such Foreign Security Document as may be requested to
effect the amendments, modifications and supplements contemplated in Section
13.19(b).
(f) The security interests required to be granted pursuant to Sections
8.11(c), (d) and (e) shall be granted pursuant to the respective Security
Documents already executed and delivered by the Credit Parties (or other
security documentation substantially similar to such Security Documents or
otherwise reasonably satisfactory in form and substance to the Collateral Agent)
and shall constitute valid and enforceable first priority perfected security
interests (subject to the applicable provisions of the Intercreditor Agreement
in the case of security interests granted by any U.S. Credit Party) prior to the
rights of all third Persons and subject to no other Liens (other than Permitted
Liens). The Credit Agreement Parties shall (or shall cause their respective
Subsidiaries), (i) at their own expense, to (x) execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record in any appropriate governmental office, any document or
instrument reasonably deemed by the Collateral Agent to be necessary or
desirable for the creation, perfection, maintenance, preservation and protection
of the Liens on its assets intended to be created pursuant to the relevant
Security Documents and (y) take all other actions reasonably requested by the
Collateral Agent (including, without limitation, the furnishing of legal
opinions) in connection with the granting of the security interests required
pursuant to Sections 8.11(c), (d) and (e) and (ii) pay in full all taxes, fees
and other charges payable in connection with the granting of the security
interests required pursuant to Sections 8.11(c), (d) and (e).
(g) Each Credit Agreement Party agrees that each action required above
by Section 8.11(a) or (b) shall be completed as soon as possible, but in no
event later than 90 days (or, in the case of actions relating to assets located
outside the United States, such greater number of days as the Administrative
Agent shall agree to in its sole and absolute discretion in any given case)
after such action is requested to be taken by the Administrative Agent or the
Required Lenders. Each Credit Agreement Party further agrees that (x) each
action required above by Section 8.11(c), (d) and (f) with respect to a newly
formed, created or acquired Subsidiary, or with respect to any Subsidiary which
is located in a jurisdiction newly-designated as a Qualified Jurisdiction or
which becomes an Unrestricted Subsidiary, shall be completed contemporaneously
with the formation, creation or acquisition of such Subsidiary, the date of the
addition of the respective jurisdiction to the list of Qualified Jurisdictions
or the date such Subsidiary becomes an Unrestricted Subsidiary, as the case may
be, (provided that (x) the Credit Documents required to be executed and
delivered pursuant to Section 8.11(c) by such newly formed, created or acquired
Subsidiary shall not be required to be so executed and delivered until 45 days
after the formation, creation or acquisition of such Subsidiary, (y) in the case
of a Shell Corporation formed, created or established by the U.S. Borrower or
any of its Subsidiaries, such actions shall not be required to be taken (so long
as same remains a Shell Corporation) until 60 days after the formation, creation
or establishment of such Shell Corporation and (z) in the case of a newly-formed
Subsidiary organized in (i) a Qualified Non-U.S. Jurisdiction or (ii) a
Non-Qualified Jurisdiction in which an existing Foreign Subsidiary Guarantor is
organized, to defer the execution and delivery of Security Documents (but not
counterparts of the Foreign
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Subsidiaries Guaranty or the Intercompany Subordination Agreement) if the gross
book value of its assets (determined as of the last day of the calendar month
then last ended) is less than $10,000,000, until (and only until) the aggregate
gross book value of all newly-formed Subsidiaries which have not executed
Security Documents in reliance on this proviso (determined as of the last day of
the calendar month then last ended) exceeds $20,000,000, at which time all such
excluded Subsidiaries (and not just those Subsidiaries required to reduce the
aggregate gross book value of such excluded Subsidiaries to below $20,000,000)
shall execute the required Security Documents) and (y) all actions required to
be taken pursuant to the last sentence of Section 8.11(c) and Section 8.11(e)
shall be taken as promptly as practicable, and in any event within 45 days,
after Holdings or the U.S. Borrower receives the respective request from the
Administrative Agent or the Required Lenders.
(h) Notwithstanding anything to the contrary contained in clauses (c)
through (g) above, to the extent the taking of any action as described above by
a new Subsidiary acquired pursuant to a Permitted Acquisition, which is subject
to Permitted Acquired Debt which at such time remains in existence as permitted
by Section 9.04(b)(vi), then to the extent that the terms of the respective
Permitted Acquired Debt prohibit the taking of any actions which would otherwise
be required of such Subsidiary by this Section 8.11, then the time for taking
the respective actions (to the extent prohibited by the terms of the respective
Permitted Acquired Debt) shall be extended until 10 Business Days after the
earlier of (i) the date of repayment of such Permitted Acquired Debt and (ii)
the first date on which the taking of such actions would not violate the terms
of the respective issue of Permitted Acquired Debt. To the extent the terms of
any Permitted Acquired Debt prohibits the taking of actions otherwise required
by this Section 8.11, upon the request of the Administrative Agent or the
Required Lenders, each Credit Agreement Party shall, or shall cause the
respective Subsidiaries of Holdings to, (x) prepay any such Permitted Acquired
Debt which is permitted to be prepaid and/or (y) use reasonable efforts to
obtain such consents or approvals as are needed so that the taking of the
actions otherwise specified in this Section 8.11 would not violate the terms of
the respective issue of Permitted Acquired Debt. Furthermore, to the extent any
Subsidiary which is not a Wholly-Owned Subsidiary is acquired pursuant to a
Permitted Acquisition (in accordance with the limitations contained in the
definition thereof), then for so long as such Subsidiary is not a Wholly-Owned
Subsidiary, to the extent Holdings in good faith determines that the respective
Subsidiary is not able, under applicable requirements of law (whether because of
fiduciary duties under applicable law or other requirements of applicable law)
to execute and deliver a Subsidiaries Guaranty or one or more Security
Documents, the respective such Subsidiary shall not be required to become a
Subsidiary Guarantor or execute and deliver such Security Documents as otherwise
required above.
(i) Within 30 days following the request of the Administrative Agent,
the Collateral Agent or the Required Lenders, the Credit Agreement Parties shall
cause each Fee Capped Foreign Subsidiary Guarantor (to the maximum extent
permitted by applicable law) to (x) enter into such amendments and/or
modifications to the relevant Credit Documents to which such Fee Capped Foreign
Subsidiary Guarantor is a party to cause the guaranty amount or the secured
obligations thereunder, as applicable, to equal 110% of the fair market value of
the Property owned or held by such Fee Capped Foreign Subsidiary Guarantor and
(y) pay all registration, notorial and other fees, all taxes and all other
amounts as may be required in
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connection with the increase in amount of the guaranty and/or the secured
obligations under such Credit Documents.
(j) In the event that the Administrative Agent or the Required Lenders
at any time after the Initial Borrowing Date determine in their reasonable
discretion (whether as a result of a position taken by an applicable bank
regulatory agency or official, or otherwise) that real estate appraisals
satisfying the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, role, regulation, guideline or order (any such
appraisal, a "Required Appraisal") are or were required to be obtained, or
should be obtained, in connection with any U.S. Mortgaged Property or U.S.
Mortgaged Properties, then, within 90 days after receiving written notice
thereof from the Administrative Agent or the Required Lenders, as the case may
be, Holdings shall cause such Required Appraisal to be delivered, at the expense
of Holdings, to the Administrative Agent, which Required Appraisal, and the
respective appraiser, shall be satisfactory to the Administrative Agent.
(k) Notwithstanding any "after-acquired property" covenant contained
in any Foreign Security Document requiring the grant of security interests in
Property of any Foreign Credit Party in favor of the Collateral Agent (but
subject to Sections 8.11(a) and (e)), no Foreign Credit Party shall be required
to grant the Collateral Agent security interests in Property of such Foreign
Credit Party acquired after the Initial Borrowing Date which is not a vessel and
does not constitute Real Property (all such Property, "After-Acquired Foreign
Personal Property") and which is not covered already expressly by the respective
Foreign Security Document as otherwise required by such Foreign Security
Document if the gross book value of all After-Acquired Foreign Personal Property
of such Foreign Credit Party (determined as of the last day of the calendar
month then last ended) excluded from the pledge requirements pursuant to this
clause (k) is less than $10,000,000, unless (and until) the aggregate gross book
value of all After-Acquired Foreign Personal Property of all Foreign Credit
Parties excluded from the pledge requirements pursuant to this clause (k)
(determined as of the last day of the calendar month then last ended) exceeds
$20,000,000, at which time the Foreign Credit Parties shall take all actions
required to be taken pursuant to the respective Foreign Security Documents to
grant the Collateral Agent a security interest in such theretofore excluded
After-Acquired Foreign Personal Property as is required to cause the aggregate
gross book value (determined as described above) of all After-Acquired Foreign
Personal Property of all Foreign Credit Parties not then subject to a security
interest in favor of the Collateral Agent pursuant to the relevant Foreign
Security Documents not to exceed $5,000,000.
(l) Notwithstanding anything to the contrary contained above in this
Section 8.11 or elsewhere in this Agreement or the other Credit Documents, no
Credit Party shall be required to grant a security interest in, or Lien on, any
Excluded Collateral (so long as the respective Property constitutes Excluded
Collateral), and the value of any Excluded Collateral shall not be taken into
account in making determinations pursuant to the foregoing clauses of this
Section 8.11.
8.12 Foreign Subsidiaries Security. If following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for
Holdings reasonably acceptable to the Administrative Agent and the Required
Lenders does not within 30 days after a request from the
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Administrative Agent or the Required Lenders deliver evidence, in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders, that (i) a pledge of 66-2/3% or more of the total combined voting power
of all classes of Equity Interests entitled to vote of any Foreign Unrestricted
Subsidiary owned by a U.S. Credit Party which has not already had all of its
Equity Interests pledged pursuant to the U.S. Pledge Agreement or a Local Law
Pledge Agreement, as applicable, to secure all of the Obligations (as defined in
the respective such Security Document), (ii) the entering into by a Foreign
Subsidiary Guarantor of a pledge agreement in substantially the form of the U.S.
Pledge Agreement, (iii) the entering into by a Foreign Subsidiary Guarantor of a
security agreement in substantially the form of the U.S. Security Agreement and
(iv) the entering into by a Foreign Subsidiary Guarantor of a guaranty in
substantially the form of the U.S. Subsidiaries Guaranty, in any such case would
cause the undistributed earnings of such Foreign Subsidiary as determined for
Federal income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent or a deemed disposition of the shares of stock
of such Foreign Subsidiary for Federal income tax purposes, then (I) in the case
of a failure to deliver the evidence described in clause (i) above, that portion
of such Foreign Unrestricted Subsidiary's outstanding Equity Interests owned or
held by a U.S. Credit Party and not theretofore pledged pursuant to the U.S.
Pledge Agreement or a Local Law Pledge Agreement, as applicable, to secure all
of the Obligations (as defined in the respective such Security Document) shall
be pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the U.S. Pledge Agreement or the relevant Local Law Pledge Agreement
(or another pledge agreement in substantially similar form, if needed), (II) in
the case of a failure to deliver the evidence described in clause (ii) above,
such Foreign Subsidiary Guarantor shall execute and deliver the U.S. Pledge
Agreement (or another pledge agreement in substantially similar form, if
needed), granting to the Collateral Agent for the benefit of the Secured
Creditors a security interest in all of the capital stock, other Equity
Interests and promissory notes owned by such Foreign Subsidiary (other than
Excluded Collateral) and securing the Obligations of the U.S. Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement and, in the event the U.S. Subsidiaries Guaranty shall have
been executed by such Foreign Subsidiary Guarantor, the obligations of such
Foreign Subsidiary Guarantor thereunder, (III) in the case of a failure to
deliver the evidence described in clause (iii) above, such Foreign Subsidiary
Guarantor shall execute and deliver the U.S. Security Agreement (or another
security agreement in substantially similar form, if needed) granting to the
Collateral Agent for the benefit of the Secured Creditors a security interest in
all of such Foreign Subsidiary Guarantor's assets (other than the capital stock,
other Equity Interests and promissory notes owned by such Foreign Subsidiary and
such assets which constitute Excluded Collateral) and securing the obligations
of the U.S. Borrower under the Credit Documents and under any Interest Rate
Protection Agreement or Other Hedging Agreement and, in the event the U.S.
Subsidiaries Guaranty shall have been executed by such Foreign Subsidiary
Guarantor, the obligations of such Foreign Subsidiary Guarantor thereunder and
(IV) in the case of a failure to deliver the evidence described in clause (iv)
above, such Foreign Subsidiary Guarantor shall execute and deliver the U.S.
Subsidiaries Guaranty (or another guaranty in substantially similar form, if
needed), guaranteeing the Obligations of the U.S. Borrower under the Credit
Documents and under any Interest Rate Protection Agreement or Other Hedging
Agreement, in each case to the extent that the entering into of the U.S. Pledge
Agreement, the U.S. Security Agreement or the U.S. Subsidiaries Guaranty (or
similar such agreement or guaranty) is permitted by the laws of the respective
foreign jurisdiction and with all
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documents delivered pursuant to this Section 8.12 to be in form and substance
reasonably satisfactory to the Administrative Agent and/or the Required Lenders.
Notwithstanding anything to the contrary contained in this Section 8.12, no
Foreign Subsidiary shall be required to comply with the provisions of this
Section 8.12 if the tax advisors for Holdings or such Subsidiary determine that
there is a reasonable likelihood that such Foreign Subsidiary is, or has ever
been, a passive foreign investment company within the meaning of Section 1297 of
the Code.
8.13 Use of Proceeds. Holdings will, and will cause each of its
Subsidiaries to, use the proceeds of the Loans for the purposes specified in
Section 7.05. No Credit Agreement Party will, nor will it permit any of its
Subsidiaries to, use any of the proceeds of the Loans, any Letter of Credit or
any Bank Guaranty to finance the acquisition of any Person that has not been
approved and recommended by the board of directors (or functional equivalent
thereof) or the requisite shareholders of such Person.
8.14 Ownership of Subsidiaries. (a) Notwithstanding anything to the
contrary contained in this Agreement, (w) Holdings shall at all times own
directly 100% of the Equity Interests of Intermediate Holdco, (x) Intermediate
Holdco shall at all times own directly 100% of the capital stock of Corporate
Holdco and the U.S. Borrower, (y) the U.S. Borrower shall at all times own
directly or indirectly 100% of the capital stock of the Bermuda Borrower and (z)
subject to the proviso to the first sentence of Section 8.18(a), Holdings shall
at all times own directly or indirectly (through one or more Wholly-Owned
Domestic Subsidiaries (as opposed to through Foreign Subsidiaries)) all of the
capital stock or other Equity Interests (to the extent owned by Holdings or any
of its Subsidiaries) of each Domestic Subsidiary of Holdings.
(b) Holdings shall at all times own, directly or indirectly, 100% of
the capital stock or other Equity Interests of its Subsidiaries (except to the
extent (v) with respect to Foreign Subsidiaries, directors' qualifying shares
and other nominal amounts of shares required by applicable law to be held by
Persons (other than directors) are issued from time to time (so long as the
respective Subsidiary continues to constitute a Wholly-Owned Subsidiary of
Holdings), (w) 100% of the capital stock or other Equity Interests of any such
Subsidiary are sold, transferred or otherwise disposed of pursuant to a
transaction permitted by Section 9.02, (x) less than 100% of the capital stock
or other Equity Interests are acquired in the respective Subsidiary pursuant to
a Permitted Acquisition which meets the criteria specified in the definition of
Permitted Acquisition contained herein, (y) such capital stock or other Equity
Interests are acquired pursuant to an Investment permitted by Sections 9.05(xv)
and (xix) or (z) set forth on Schedule VII).
8.15 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.15 and the requirements contained in the definition of Permitted
Acquisition, the U.S. Borrower and any of its Wholly-Owned Subsidiaries may from
time to time effect Permitted Acquisitions, so long as (in each case except to
the extent the Required Lenders otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the U.S. Borrower
shall have given the Administrative Agent (on behalf of the Lenders) at least 10
Business Days' prior written notice of the proposed Permitted Acquisition; (iii)
all representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
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effect as though such representations and warranties had been made on and as of
the date of such Permitted Acquisition (both before and after giving effect
thereto), unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date; (iv) the U.S. Borrower provides to the
Administrative Agent (on behalf of the Lenders) as soon as available but not
later than 5 Business Days after the execution thereof, a copy of any executed
purchase agreement or similar agreement with respect to such Permitted
Acquisition; (v) after giving effect to such Permitted Acquisition and the
payment of all post closing purchase price adjustments required (in the good
faith determination of Holdings) in connection with such Permitted Acquisition
(and all other Permitted Acquisitions for which such purchase price adjustments
may be required to be made) and all capital expenditures (and the financing
thereof) reasonably anticipated by Holdings to be made in the business acquired
pursuant to such Permitted Acquisition within the 180 day period (such period
for any Permitted Acquisition, a "Post-Closing Period" following such Permitted
Acquisition (and in the businesses acquired pursuant to all other Permitted
Acquisitions with Post Closing Periods ended during the Post Closing Period of
such Permitted Acquisition), the (x) Total Unutilized Revolving Loan Commitment
(as defined in the ABL Credit Agreement) or, if less, the amount which could
then be borrowed thereunder giving effect to the "borrowing base" or similar
limitations on amounts permitted to be borrowed thereunder or (y) in the event
that the ABL Credit Agreement shall have been replaced or refinanced, undrawn
available amounts under other working capital revolving credit facilities of the
U.S. Borrower (determined based on the relevant total commitments and borrowing
base or other similar limitations as applicable), shall equal or exceed
$30,000,000; (vi) such proposed Permitted Acquisition shall be effected in
accordance with the relevant requirements of Section 8.18; (vii) the U.S.
Borrower determines in good faith that Holdings and its Subsidiaries taken as a
whole are not likely to assume or become liable for material increased
contingent liabilities as a result of such proposed Permitted Acquisition
(excluding, however, Indebtedness permitted to be incurred pursuant to Section
9.04 in connection therewith); (viii) substantially all of the Acquired Entity
or Business acquired pursuant to the respective Permitted Acquisition is in a
Qualified Jurisdiction (for such purpose, treating as "Qualified Jurisdictions"
the jurisdictions of organization of Fee Capped Foreign Subsidiary Guarantors
deemed to be "Qualified Non-U.S. Obligors" pursuant to clause (i) of the proviso
appearing in the definition of "Qualified Non-U.S. Obligors"), provided,
however, the respective proposed Permitted Acquisition shall not be required to
meet the requirements set forth above in this clause (viii) if the Maximum
Permitted Consideration payable in connection with such Permitted Acquisition,
when aggregated with the Maximum Permitted Consideration payable in connection
with all other Permitted Acquisitions consummated after the Restatement
Effective Date in which all or substantially all of the Acquired Entity or
Business so acquired were not in Qualified Jurisdictions, does not exceed
$300,000,000; and (ix) the U.S. Borrower shall have delivered to the
Administrative Agent on the date of the consummation of such proposed Permitted
Acquisition, an officer's certificate executed by an Authorized Officer of the
U.S. Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (iii), inclusive, and clauses (v)
through (viii), inclusive, and containing the calculations required by the
preceding clauses (v) and (viii);
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of an Unrestricted Subsidiary, or the acquisition of capital
stock or other Equity Interests of any Person (other than a Restricted
Subsidiary of the U.S. Borrower), all capital
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stock or other Equity Interests thereof created or acquired in connection with
such Permitted Acquisition shall be pledged for the benefit of the Secured
Creditors as, and to the extent required by, Section 8.11 and the relevant
Security Documents.
(c) Each Credit Agreement Party shall cause each Subsidiary that is
formed to effect, or is acquired pursuant to, a Permitted Acquisition to comply
with, and to execute and deliver, all of the documentation required by, Sections
8.11 and 9.11, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by each Credit Agreement Party that the
certifications by each Credit Agreement Party (or by one or more of its
respective Authorized Officers) pursuant to Section 8.15 are true and correct
and that all conditions thereto have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 6 and 10.
8.16 Maintenance of Company Separateness. Each Credit Agreement Party
will, and will cause each of its Subsidiaries to, satisfy customary Company
formalities, including the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of Company records. Neither Holdings nor any other Credit
Party shall make any payment to a creditor of any Non-Guarantor Subsidiary in
respect of any liability of any Non-Guarantor Subsidiary, and no bank account of
any Non-Guarantor Subsidiary shall be commingled with any bank account of
Holdings or any other Credit Party. Any financial statements distributed to any
creditors of any Non-Guarantor Subsidiary shall clearly establish or indicate
the corporate separateness of such Non-Guarantor Subsidiary from Holdings and
its other Subsidiaries. Finally, neither Holdings nor any of its Subsidiaries
shall take any action, or conduct its affairs in a manner, which is likely to
result in the Company existence of any Credit Agreement Party, any other Credit
Party or any Non-Guarantor Subsidiaries being ignored, or in the assets and
liabilities of Holdings or any other Credit Party being substantively
consolidated with those of any other such Person or any Non-Guarantor Subsidiary
in a bankruptcy, reorganization or other insolvency proceeding.
8.17 Performance of Obligations. Each Credit Agreement Party will, and
will cause each of its Subsidiaries to, perform all of its obligations under the
terms of each mortgage, deed of trust, indenture, loan agreement or credit
agreement and each other material agreement, contract or instrument by which it
is bound, except such non-performances as, individually or in the aggregate,
have not caused, and could not reasonably be expected to cause, a Default or
Event of Default hereunder or a Material Adverse Effect.
8.18 Conduct of Business. (a) The Credit Agreement Parties shall take
all actions so that, at all times from and after the Initial Borrowing Date, all
the assets of Holdings and its Subsidiaries located within the United States,
all Equity Interests in all Domestic Subsidiaries or other U.S. Persons and all
or substantially all of the business of Holdings and its Subsidiaries conducted
in the United States, are, in each case, owned or conducted, as the case may be,
by Holdings and one or more Qualified U.S. Obligors which are not direct or
indirect Subsidiaries of any Subsidiary of Holdings which is a Foreign
Subsidiary, provided that if a
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Foreign Subsidiary (not itself created or established in contemplation of a
Permitted Acquisition) is acquired pursuant to a Permitted Acquisition which
Foreign Subsidiary has (either directly or through one or more Domestic
Subsidiaries) assets or operations in the United States, Holdings shall have a
reasonable period of time (not to exceed 60 days) to effect the transfer of U.S.
assets and operations (including all Equity Interests in any Domestic
Subsidiaries or other U.S. Persons held by it) of the respective Foreign
Subsidiary to one or more Qualified U.S. Obligors, provided, further, that the
respective transfer shall not be required to be made if Holdings in good faith
determines that such transfer would give rise to adverse tax consequences to
Holdings and its Subsidiaries or would give rise to any material breach or
violation of law or contract (in which case, Holdings and its Subsidiaries shall
transfer such assets and operations at such time, if any, as such adverse tax
consequences or breach or violation would not exist and, until such time, shall
use good faith efforts so that any growth in the assets or operations of the
entity so acquired, to the extent located in the United States, are made within
one or more Qualified U.S. Obligors).
(b) In addition to the foregoing requirements, the Credit Agreement
Parties shall take all actions so that, at all times from and after the Initial
Borrowing Date, all the assets of Holdings' Subsidiaries located within all
Qualified Non-U.S. Jurisdictions, all Equity Interests in all Persons organized
under any Qualified Non-U.S. Jurisdiction and all or substantially all of the
business of Holdings' Subsidiaries conducted in all Qualified Non-U.S.
Jurisdictions, are, in each case, owned or conducted, as the case may be, by one
or more Qualified Non-U.S. Obligors which are not direct or indirect
Subsidiaries of any Subsidiary of Holdings other than Qualified Obligors,
provided that if a Subsidiary of Holdings organized under the laws of a
jurisdiction other than any Qualified Non-U.S. Jurisdiction (not itself created
or established in contemplation of the respective Permitted Acquisition) is
acquired pursuant to a Permitted Acquisition which Subsidiary has (either
directly or through one or more Subsidiaries) assets or operations outside
Qualified Non-U.S. Jurisdictions, Holdings shall have a reasonable period of
time (not to exceed 60 days) to effect the transfer of all assets and operations
outside Qualified Non-U.S. Jurisdictions (including all Equity Interests in any
Persons held by it which are organized under the laws of one or more Qualified
Non-U.S. Jurisdiction) of the respective Subsidiary to one or more Qualified
Non-U.S. Obligors which are not themselves direct or indirect Subsidiaries of
any Subsidiary of Holdings other than Qualified Obligors, provided, further,
that the respective transfer shall not be required to be made if Holdings in
good faith determines that such transfer would give rise to adverse tax
consequences to Holdings and its Subsidiaries or would give rise to any material
breach or violation of law or contract (in which case, Holdings and its
Subsidiaries shall transfer such assets and operations at such time, if any, as
such adverse tax consequences or breach or violation would not exist, and until
such time shall use good faith efforts so that any growth in the assets or
operations of the entity so acquired, to the extent located in the Qualified
Non-U.S. Jurisdictions, are made within one or more Qualified Non-U.S. Obligors
which are not themselves direct or indirect Subsidiaries of any Subsidiary of
Holdings other than Qualified Obligors). Notwithstanding the foregoing
provisions of this Section 8.18(b), the ownership of the Bermuda Partnership (a
Subsidiary which is not a Qualified Non-U.S. Obligor) of Equity Interests of
Qualified Non-U.S. Obligors shall not be taken account of for purposes of
determining compliance with this Section 8.18(b), so long as the Credit
Agreement Parties and their respective Foreign Subsidiaries are at all times in
compliance with Section 8.18(c) below.
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(c) The Credit Agreement Parties shall take all actions so that all
Foreign Subsidiaries that are not Qualified Non-U.S. Obligors are directly or
indirectly owned by one or more Qualified Non-U.S. Obligors (or, in the case of
the Bermuda Partnership, is owned by the Bermuda Partnership Partners).
(d) For the avoidance of doubt, it is understood and agreed that the
foregoing provisions of this Section 8.18 shall not prohibit the acquisition of,
or Investments in, Non-Wholly-Owned Subsidiaries as contemplated by Section
9.11(b), provided that the Equity Interest owned by Holdings or any of its
Subsidiaries in such Non-Wholly-Owned Subsidiaries, to the extent organized
under the laws of any Qualified Jurisdiction, shall be subject to the
requirements of preceding clauses (a), (b) and (c) of this Section 8.18.
8.19 Margin Stock. Each Credit Agreement Party shall take all actions
so that at all times the aggregate value of all Margin Stock (other than
treasury stock) owned by Holdings and its Subsidiaries (for such purpose, using
the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) shall not exceed $10,000,000. So long as the
aggregate value of Margin Stock (other than treasury stock) owned by Holdings
and its Subsidiaries (determined as provided in the preceding sentence) does not
exceed $10,000,000, all Margin Stock at any time owned by Holdings and its
Subsidiaries shall not constitute Collateral and no security interest shall be
granted therein pursuant to any Credit Document. Without excusing any violation
of the first sentence of this Section 8.19, if at any time the aggregate value
of all Margin Stock (other than treasury stock) owned by Holdings and its
Subsidiaries (determined as provided in the first sentence of this Section 8.19)
exceeds $10,000,000, then (x) all Margin Stock owned by the Credit Parties
(except to the extent constituting Excluded Collateral) shall be pledged, and
delivered for pledge, pursuant to the relevant Security Documents and (y) the
U.S. Borrower shall execute and deliver to the Lenders appropriate completed
forms (including, without limitation, Forms G-3 and U-1, as appropriate)
establishing compliance with the Margin Regulations. If at any time any Margin
Stock is required to be pledged as a result of the provisions of the immediately
preceding sentence, repayments of outstanding Obligations shall be required to
be made, and subsequent Credit Events shall only be permitted, in compliance
with the applicable provisions of the Margin Regulations.
8.20 Foreign Security Document Amendments. (x) If any additional
Foreign Security Document is entered into by Holdings or any of its Subsidiaries
after the Restatement Effective Date or (y) any change in applicable law
governing any Foreign Security Document relevant to the scope of the Obligations
covered by such Foreign Security Document or the Secured Creditors entitled to
the benefits of such Foreign Security Document occurs after the Restatement
Effective Date and, in any such case, the Collateral Agent (based on the advice
of local counsel) has determined that amendments to the respective Foreign
Security Document are required to maintain a valid and enforceable first
priority lien on the Collateral covered by such Foreign Security Document in
favor of the Collateral Agent for the benefit of all of the Secured Creditors
securing all of the relevant Obligations (i.e., all Tranche C Term Loans, all
Bermuda Borrower Letters of Credit and Unpaid Drawings thereunder, all Bermuda
Borrower Bank Guaranties and Unreimbursed Payments thereunder, and, after a
given Incremental Term Loan Commitment Date, all related incremental Obligations
resulting from the provision of the respective Incremental Term Loan Commitments
to the Bermuda Borrower), then, within 90
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days following the request of the Collateral Agent or the Administrative Agent,
the U.S. Borrower shall duly authorize, execute and deliver to the Collateral
Agent, or cause to be duly authorized, executed and delivered to the Collateral
Agent, a fully executed counterpart of an amendment to such Foreign Security
Document, which amendment shall (i) be in full force and effect (and, if
applicable, properly recorded) no later than the date of required execution and
delivery of such amendment as provided above and (ii) otherwise be in form and
substance satisfactory to the Administrative Agent.
8.21 Refinancing. To the extent that the condition set forth in
Section 5.08(a)(i) was not satisfied in accordance with its terms on the
Restatement Effective Date, on the Intermediate Holdco Prepayment Date,
Intermediate Holdco and Corporate Holdco shall, or shall cause the Intermediate
Holdco Paying Agent (for and on behalf of Intermediate Holdco and Corporate
Holdco) to, prepay all of the outstanding Intermediate Holdco Indebtedness
(other than indemnities not then due and payable) (including, without
limitation, the call or other premiums payable in connection therewith and all
accrued and unpaid interest thereon up to and including the Intermediate Holdco
Prepayment Date) in accordance with, and pursuant to, the terms of the
Intermediate Holdco Credit Agreement and the other Intermediate Holdco Credit
Documents (the "Intermediate Holdco Prepayment Consummation"). In connection
therewith and the satisfaction of Section 5.08(a)(i), on the Restatement
Effective Date (with respect to the satisfaction of Section 5.08(a)(i)) or the
Intermediate Holdco Prepayment Date (in connection with the Intermediate Holdco
Prepayment Consummation) and at any time, respectively, thereafter (at the
request of the Administrative Agent or the Intermediate Holdco Paying Agent, as
the case may be, from time to time), the Credit Parties shall take (and use
commercially reasonable efforts to cause the respective lenders to take) such
actions (including, without limitation, executing or obtaining appropriate lien
releases and other documents) as the Administrative Agent or the Intermediate
Holdco Paying Agent, as the case may be, may deem reasonably necessary or
desirable to (x) release any Lien granted to or held by any Person under, and
pursuant to the terms of, the Intermediate Holdco Credit Documents and (y)
terminate and satisfy in full all of the liabilities and obligations at any time
arising under or in respect of the Intermediate Holdco Credit Documents
(including, without limitation, the Intermediate Holdco Indebtedness).
Section 9. Negative Covenants. Each Credit Agreement Party hereby
covenants and agrees that as of the Restatement Effective Date and thereafter
for so long as this Agreement is in effect and until the Total Commitment has
terminated, no Letters of Credit, Bank Guaranties or Notes are outstanding and
the Loans, together with interest, Fees and all other Obligations (other than
any indemnities described in Section 13.13 which are not then due and payable)
incurred hereunder, are paid in full:
9.01 Changes in Business; etc. (a) Holdings and its Subsidiaries will
not engage in any business other than a Permitted Business.
(b) Notwithstanding the foregoing, Holdings will not engage in any
business and will not own any significant assets (other than its ownership of
(w) cash and Cash Equivalents held by Holdings representing proceeds from the
Wellbeing Project Financing, (x) the Equity Interests of Intermediate Holdco,
(y) Intercompany Notes evidencing intercompany loans permitted to be made by it
pursuant to Section 9.05 and (z) after the issuance
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thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint
Ventures) or have any liabilities (other than those liabilities for which it is
responsible under this Agreement, the Documents to which it is a party
(including, without limitation, the ABL Credit Documents), any Shareholder
Subordinated Note, any Interest Rate Protection Agreement permitted to be
entered into pursuant to Section to Section 9.04(b)(iii) and any Intercompany
Note evidencing an intercompany loan permitted to be incurred by Holdings
pursuant to Section 9.05); provided that Holdings may (i) issue Shareholder
Subordinated Notes, shares of Holdings Common Stock and options and warrants to
purchase Holdings Common Stock, (ii) engage in those activities associated with
expenses indirectly paid with Dividends made to it by Intermediate Holdco
pursuant to Section 9.06(iv), (iii) engage in those activities associated with
the purchase and ownership of the Equity Interests of the Unrestricted Wellbeing
Joint Ventures permitted pursuant to Section 9.05(xx) and (iv) engage in those
activities that are incidental to (x) the maintenance of its corporate existence
in compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and
performing its obligations under, this Agreement and the other Documents
(including, without limitation, the ABL Credit Documents) to which it is a
party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not
engage in any business and will not own any significant assets or any cash or
Cash Equivalents (other than its ownership of Equity Interests of Qualified
Non-U.S. Obligors) or have any material liabilities (other than those
liabilities for which it is responsible under the Credit Documents to which it
is a party), provided that the Bermuda Partnership may (I) provide treasury,
accounting, logistic and other administrative support services to its Affiliates
on an arms' length basis and hold and retain cash earned in connection with the
provision of such services, (II) receive and hold additional cash and Cash
Equivalents from its Subsidiaries and/or its Affiliates, so long as same are
promptly (and in any event within one Business Day of receipt thereof) loaned,
distributed and/or contributed, subject to Section 9.01(d), to its Subsidiaries
and/or Affiliates in accordance with the requirements of Section 9.05 of this
Agreement and (III) engage in those activities that (i) are incidental to (x)
the maintenance of its Company existence in compliance with applicable law, (y)
legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, the
Credit Documents to which it is a party and (ii) are otherwise expressly
permitted by this Agreement (other than pursuant to preceding Section 9.01(a))
and the other Credit Documents.
(d) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement (including, without limitation, Sections 9.02 and
9.05):
(i) the Bermuda Partnership Partners shall not collectively own or
hold (x) Property (exclusive of Property leased or operated but not owned)
with a Fair Market Value in excess of $30,000,000 at any time or (y) cash
or Cash Equivalents in an aggregate in excess of $10,000,000; provided that
(v) all assets owned by the Bermuda Partnership Partners on the Restatement
Effective Date (which assets shall have a net book value on the Restatement
Effective Date not to exceed $25,000,000) shall be excluded for purposes of
such determination, (w) any cash and Cash Equivalents loaned and/or
contributed to such Persons by Affiliates of such Persons shall be excluded
for purposes of such determination, so long as same are promptly (and in
any event within one Business Day) loaned and/or distributed to other
Affiliates of such Persons (other
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than another Bermuda Partnership Partner) in accordance with the
requirements of this Agreement, (x) any inventory owned by the Bermuda
Partnership Partners shall be excluded for purposes of such determination,
(y) any Equity Interests in the Bermuda Partnership which are held by the
Bermuda Partnership Partners shall be excluded for purposes of such
determination and (z) any intercompany receivable owed to a Bermuda
Partnership Partner by ββββ Settlement Company shall be excluded for
purposes of such determination, so long as (I) both ββββ Settlement Company
(as obligor) and the respective Bermuda Partnership Partner (as obligee)
are parties to the Intercompany Subordination Agreement and (II) such
intercompany receivable is at all times subject to the subordination
provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or
be liquidated or dissolved into any other Person, provided, however, that
any Bermuda Partnership Partner may merge or consolidate with or into any
other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the
sole purpose of reincorporating such Bermuda Partnership Partner in a
different jurisdiction, so long as the surviving entity of such merger or
consolidation remains a "Bermuda Partnership Partner" for all purposes of
this Agreement and the other Credit Documents (subject to and bound by all
terms and covenants herein and therein applicable to a "Bermuda Partnership
Partner");
(iii) no Bermuda Partnership Partner shall engage in any business
other than a business which is the same or reasonably related to the
business in which such Bermuda Partnership Partner is engaged on the
Original Effective Date;
(iv) no later than one Business Day following the date upon which any
Bermuda Partnership Partner receives or generates an Account (as defined in
the U.S. Security Agreement), such Account shall be sold on a non-recourse
basis to ββββ Settlement Company (at a discount of 2%) in exchange for a
note payable (which shall at all times be subject to the subordination
provisions contained in the Intercompany Subordination Agreement) and/or
the assumption of a payable or payables owing by such Bermuda Partnership
Partner to its relevant Subsidiary which sells fruit, inventory or other
Property, or provides shipping services, to such Bermuda Partnership
Partner (which assumed liabilities shall also be subject to the
subordination provisions contained in the Intercompany Subordination
Agreement); and
(v) upon the occurrence and during the continuance of any Specified
Default or any Event of Default under Section 10.01 or 10.05, unless
otherwise directed by the Administrative Agent or the Required Lenders, (x)
neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit,
inventory or other Property to, or contract to perform shipping services
for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its
Subsidiaries shall sell to ββββ Settlement Company fruit, inventory and
other Property formerly sold to, and shall contract with ββββ Settlement
Company to sell shipping services formerly contracted with, any Bermuda
Partnership Partner and (z) no Bermuda Partnership Partner shall be
permitted to receive any Dividends or the proceeds of any intercompany
loans or advances from any of its Affiliates.
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(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary
will not engage in any business and will not own any assets or have any
liabilities; provided that the Excluded Domestic Subsidiary may engage in those
activities that are incidental to (x) the maintenance or termination of its
corporate existence in compliance with applicable law, and (y) legal, tax and
accounting matters in connection with any of the foregoing activities.
(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance
Company will engage in any business (other than the insurance related business
conducted by it on the Original Effective Date (including, without limitation,
its business as a captive insurer for Holdings and its Affiliates with respect
to property, casualty and liability insurance (including workers compensation
insurance))) and will not own any Equity Interests or any other significant
assets (other than assets used in the conduct of its business as described
above) or have any liabilities (other than those liabilities under the Documents
to which it is a party and those liabilities incurred in the ordinary course of
its business as described above); provided, that an Excluded Bermuda Insurance
Company may engage in those activities that are incidental to (x) the
maintenance of its Company existence in compliance with applicable law, (y)
legal, tax and accounting matters in connection with any of the foregoing
activities and (z) the entering into, and performing its obligations under, this
Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this
Section 9.01 or elsewhere in this Agreement, at no time shall Holdings or any
Subsidiary of Holdings be an obligor or an obligee with respect to any
Intercompany Debt, unless each obligor (including each Person which is a
guarantor thereof) and each obligee with respect thereto are party to the
Intercompany Subordination Agreement; provided, however, that the provisions
hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D
of Schedule XII.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will
engage in any business or own any assets (other than (x) Equity Interests of
another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market
Value not exceeding $25,000) or have any liabilities; provided, that any
Excluded Foreign Subsidiary may engage in those activities that are incidental
to (x) the maintenance or termination of its corporate existence in compliance
with applicable law and (y) legal, tax and accounting matters in connection with
any of the foregoing activities.
(i) Holdings shall not permit any Unrestricted Wellbeing Joint Venture
to engage in any business other than the development, construction and operation
of a well being center/hotel/spa/conference center/studio and reasonably related
extensions thereof (including the promotion of nutritional education, production
and distribution of nutrition- or health-oriented programming on cable
television and the sale of educational videos).
(j) Notwithstanding the foregoing, Intermediate Holdco will not engage
in any business and will not own any significant assets (other than its
ownership of the capital stock of the U.S. Borrower and Corporate Holdco and
Intercompany Notes evidencing intercompany loans permitted to be made by it
pursuant to Section 9.05) or have any liabilities (other than those liabilities
for which it is responsible under this Agreement, the Documents (including,
without limitation, the ABL Credit Documents) to which it is a party and any
Intercompany Note
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evidencing an intercompany loan permitted to be incurred by it pursuant to
Section 9.05); provided that Intermediate Holdco may (i) engage in those
activities associated with expenses paid with Dividends made by the U.S.
Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities that
are incidental to (x) the maintenance of its corporate existence in compliance
with applicable law, (y) legal, tax and accounting matters in connection with
any of the foregoing activities and (z) the entering into, and performing its
obligations under, this Agreement and the other Documents to which it is a
party.
(k) Notwithstanding the foregoing, Corporate Holdco will not engage in
any business and will not own any significant assets or have any liabilities
(other than those liabilities for which it is responsible under this Agreement
and the Documents (including, without limitation, the ABL Credit Documents) to
which it is a party); provided that Corporate Holdco may (i) engage in those
activities associated with expenses indirectly paid with Dividends made by the
U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities
that are incidental to (x) the maintenance of its corporate existence in
compliance with applicable law, (y) legal, tax and accounting matters in
connection with any of the foregoing activities and (z) the entering into, and
performing its obligations under, this Agreement and the other Documents to
which it is a party.
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. No Credit
Agreement Party will, nor will permit any of its respective Subsidiaries to,
wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of all or
any part of its property or assets, or enter into any sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions of inventory, materials and equipment in the ordinary course of
business) of any Person or agree to do any of the foregoing at any future time,
except that the following shall be permitted:
(i) the U.S. Borrower and its Subsidiaries may lease (as lessee) or
license (as licensee) real or personal property (including intellectual
property) in the ordinary course of business (so long as any such lease or
license does not create a Capitalized Lease Obligation);
(ii) Capital Expenditures by the U.S. Borrower and its Subsidiaries;
(iii) any Investments permitted pursuant to Section 9.05;
(iv) the U.S. Borrower and its Subsidiaries may, in the ordinary
course of business, sell or otherwise dispose of assets (excluding capital
stock of, or other Equity Interests in, Subsidiaries and joint ventures)
which, in the reasonable opinion of such Person, are obsolete, uneconomic
or worn-out;
(v) the U.S. Borrower and its Subsidiaries may sell assets (other than
(I) the capital stock or other Equity Interests of any Wholly-Owned
Subsidiary unless all of the capital stock or other Equity Interests of
such Wholly-Owned Subsidiary are sold in accordance with this clause (v)
and (II) assets subject to a Contemplated Asset Sale (which shall be
governed by Section 9.02(xviii)), so long as (v) no Default or Event of
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Default then exists or would result therefrom, (w) each such sale is in an
arm's-length transaction and the U.S. Borrower or the respective Subsidiary
receives at least Fair Market Value, (x) except for customary post-closing
adjustments (to be paid in cash within 180 days following the closing of
the respective sale or disposition), at least 75% of the total
consideration received by the U.S. Borrower or such Subsidiary is paid in
cash at the time of the closing of such sale or disposition (provided that
sales of assets for aggregate consideration of $20,000,000 (taking the Fair
Market Value of any non-cash consideration) in any Fiscal Year of Holdings
shall not be subject to the minimum cash requirement set forth above in
this subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or
reinvested as (and to the extent) required by Section 4.02(c) and (z) the
aggregate amount of the proceeds received from all assets sold pursuant to
this clause (v) shall not exceed $100,000,000 in any Fiscal Year of
Holdings;
(vi) each of the U.S. Borrower and its Subsidiaries may sell or
discount, in each case without recourse and in the ordinary course of
business, overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof
and not as part of any financing transaction;
(vii) each of the U.S. Borrower and its Subsidiaries may grant
licenses, sublicenses, leases or subleases to other Persons not materially
interfering with the conduct of the business of the U.S. Borrower or any of
its Subsidiaries, in each case so long as no such grant otherwise affects
the Collateral Agent's security interest in the asset or property subject
thereto;
(viii) subject to Sections 9.01(c) and (d), transfers of assets (u)
pursuant to the Foreign Asset Transfer, (v) among the Qualified U.S.
Obligors (other than Holdings, Intermediate Holdco and Corporate Holdco),
(w) among the Qualified Non-U.S. Obligors, (x) by any Subsidiary of the
U.S. Borrower to any Qualified U.S. Obligor (other than Holdings,
Intermediate Holdco and Corporate Holdco), (y) by any Foreign Subsidiary of
the U.S. Borrower to any Qualified Non-U.S. Obligor and (z) by any Foreign
Subsidiary of the U.S. Borrower (other than a Qualified Non-U.S. Obligor)
to any Wholly-Owned Foreign Subsidiary of the U.S. Borrower, in the case of
any such transfer, so long as (I) no Specified Default and no Event of
Default then exists or would exist immediately after giving effect to the
respective transfer, (II) any security interests granted to the Collateral
Agent for the benefit of the Secured Creditors pursuant to the relevant
Security Documents in the assets so transferred shall remain in full force
and effect and perfected and enforceable (to at least the same extent as in
effect immediately prior to such transfer) and (III) if the respective
transferor is party to a Guaranty, the nature and scope of the obligations
of such transferor under its Guaranty are substantially identical to the
nature and scope of the obligations of the respective transferee under its
Guaranty;
(ix) subject to Sections 9.01(c) and (d), (x) any Domestic Subsidiary
of the U.S. Borrower may be merged, consolidated or liquidated with or into
the U.S. Borrower (so long as the U.S. Borrower is the surviving
corporation of such merger, consolidation or liquidation) or any U.S.
Subsidiary Guarantor (so long as a U.S. Subsidiary Guarantor is the
surviving corporation of such merger, consolidation or liquidation), (y)
any
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Qualified Non-U.S. Obligor may be merged, consolidated or liquidated with
or into any other Qualified Non-U.S. Obligor and (z) any Foreign Subsidiary
of the U.S. Borrower (other than a Qualified Non-U.S. Obligor) may be
merged, consolidated or liquidated with or into any Wholly-Owned Foreign
Subsidiary of the U.S. Borrower, so long as such Wholly-Owned Foreign
Subsidiary is the surviving corporation of such merger, consolidation or
liquidation; provided that any such merger, consolidation or liquidation
shall only be permitted pursuant to this Section 9.02(ix), so long as (I)
no Specified Default and no Event of Default then exists or would exist
immediately after giving effect thereto, (II) any security interests
granted to the Collateral Agent for the benefit of the Secured Creditors in
the assets (and Equity Interests) of any such Person subject to any such
transaction shall remain in full force and effect and perfected and
enforceable (to at least the same extent as in effect immediately prior to
such merger, consolidation or liquidation) and (III) if the Person to be
merged, consolidated or liquidated into another Person as contemplated
above is party to a Guaranty, the nature and scope of the obligations of
such Person under its Guaranty are substantially identical to the nature
and scope of the obligations of such other Person under its Guaranty;
(x) subject to Sections 9.01(c) and (d), the U.S. Borrower and its
Subsidiaries may transfer inventory in a non-cash or cash transfer to
Wholly-Owned Subsidiaries of the U.S. Borrower that are not Qualified
Obligors, in each case so long as (I) any such transfer is made in the
ordinary course of its business and consistent with past practice of the
U.S. Borrower and its Subsidiaries as in effect on the Effective Date, (II)
if the respective transfer is being made to any Credit Party, all actions
needed to maintain the perfection, priority and enforceability of the
security interests, if any, of the Collateral Agent in the assets so
transferred are taken at the time of the respective transfer, (III) the
U.S. Borrower reasonably determines that the transfer is not reasonably
likely to be adverse to the interests of the Lenders in any material
respect and (IV) no Specified Default and no Event of Default then exists
or would exist immediately after giving effect to the respective transfer;
(xi) subject to Sections 9.01(c) and (d), so long as no Specified
Default and no Event of Default exists at the time of the respective
transfer or immediately after giving effect thereto, Qualified Obligors
shall be permitted to transfer additional assets (other than inventory,
cash, Cash Equivalents and Equity Interests in any Credit Party) to other
Subsidiaries of the U.S. Borrower, so long as cash in an amount at least
equal to the Fair Market Value of the assets so transferred is received by
the respective transferor;
(xii) the U.S. Borrower and its Subsidiaries may sell or exchange
specific items of equipment, so long as the purpose of each such sale or
exchange is to acquire (and results within 90 days of such sale or exchange
in the acquisition of) replacement items of equipment which are useful in a
Permitted Business;
(xiii) each of the Borrowers and the Subsidiary Guarantors shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.15;
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(xiv) one or more Subsidiaries identified to the Agents may sell all
of the Equity Interests of a certain Subsidiary of the U.S. Borrower owned
by such Subsidiaries and identified to the Agents, so long as (v) no
Default or Event of Default then exists or would result therefrom, (w) each
such sale is in an arm's-length transaction and the respective Subsidiary
receives at least Fair Market Value, (x) except for customary post-closing
adjustments, at least 20% of the total consideration received by such
Subsidiaries (in the aggregate) is paid in cash at the time of the closing
of such sale, (y) the Net Sale Proceeds therefrom are applied and/or
reinvested as (and to the extent) required by Section 4.02(c) and (z) the
aggregate amount of the consideration (taking the Fair Market Value of any
non-cash consideration) received from all such sales pursuant to this
Section 9.02(xiv), together with the sale or sales made pursuant to Section
9.02(xx), shall not exceed $50,000,000;
(xv) the Sale-Lease Back Transaction;
(xvi) each of the U.S. Borrower and its Subsidiaries may sell or
liquidate Cash Equivalents, in each case for cash at fair market value (as
reasonably determined by the U.S. Borrower or the respective Subsidiary);
(xvii) the U.S. Borrower and its Subsidiaries may sell inventory to
their respective customers in the ordinary course of business;
(xviii) each of the U.S. Borrower and its Subsidiaries may effect
Contemplated Asset Sales, so long as (i) no Event of Default then exists or
would exist immediately after giving effect thereto, (ii) each such sale is
an arms'-length transaction and the U.S. Borrower or the respective
Subsidiary receives at least Fair Market Value, (iii) the consideration
therefor consists solely of cash and/or Permitted Installment Notes (to the
extent same may be issued in accordance with the definition thereof), (iv)
at least 50% of the total consideration received by the U.S. Borrower or
such Subsidiary is paid in cash at the time of the closing of such sale,
and (v) the Net Sale Proceeds therefrom are applied as, and to the extent,
required by Section 4.02(c);
(xix) the U.S. Borrower and its Domestic Subsidiaries may sell and
leaseback (i) Real Property located in ββββββ County, North Carolina (the
"ββββββ Property"), to the extent same is not a Principal Property and (ii)
Principal Properties, so long as (v) no Default or Event of Default then
exists or would result therefrom, (w) each
such sale is made pursuant to an arm's-length transaction, (x) 100% of the
total consideration received by the U.S. Borrower or such Subsidiary is
paid in cash at the time of the closing of such sale, (y) the Net Sale
Proceeds therefrom equal at least 90% of the Fair Market Value of the
Property subject to such sale-leaseback transaction and (z) the Net Sale
Proceeds therefrom are applied as a mandatory repayment and/or commitment
reduction and/or reinvested, in any case, in accordance with the
requirements of Section 4.02(c); and
(xx) certain Domestic Subsidiaries identified to the Agents which own
Real Property located in California may sell Real Property and other
assets, in each case, so long as (v) no Default or Event of Default then
exists or would result therefrom, (w) each
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such sale is in an arm's-length transaction and the respective Subsidiary
receives at least Fair Market Value, (x) except for customary post-closing
adjustments, at least 75% of the total consideration received by such
Subsidiaries (in the aggregate) is paid in cash at the time of the closing
of such sale, (y) unless on-loaned to an Affiliate of the U.S. Borrower in
accordance with the requirements of Section 9.05 and 9.07 promptly
following the consummation of such sale, any Net Sale Proceeds therefrom
received by a Subsidiary of the U.S. Borrower (exclusive of any portion
thereof which is distributed to a minority shareholder of such Subsidiary
in accordance with the requirements of Section 9.06) are applied and/or
reinvested as (and to the extent) required by Section 4.02(c) and (z) the
aggregate amount of the consideration (taking the Fair Market Value of any
non-cash consideration) received from such sale or sales pursuant to this
Section 9.02(xx), together with the sale or sales made pursuant to Section
9.02(xiv), shall not exceed $50,000,000 (the "California Disposition").
Notwithstanding anything to the contrary contained above in this Section 9.02,
in no event shall Holdings or any of its Subsidiaries enter into any
sale-leaseback transactions, except in accordance with Sections 9.02(xv) and
(xix) above. The foregoing provisions of this Section 9.02 are subject to
continued compliance by the Credit Agreement Parties and their Subsidiaries with
the requirements of Sections 8.18, 9.01 and 9.11. To the extent the Required
Lenders waive the provisions of this Section 9.02 with respect to the sale or
other disposition of any Collateral, or any Collateral is sold or otherwise
disposed of as permitted by this Section 9.02, such Collateral (unless
transferred to Holdings or a Subsidiary thereof) shall be sold or otherwise
disposed of free and clear of the Liens created by the Security Documents and
the Administrative Agent shall take such actions (including, without limitation,
directing the Collateral Agent to take such actions) as are appropriate in
connection therewith.
9.03 Liens. No Credit Agreement Party will, nor will permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of Holdings or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to
Holdings or any of its Subsidiaries) or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the
provisions of this Section 9.03 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with U.S. GAAP;
(ii) Liens in respect of property or assets of the U.S. Borrower or
any of its Subsidiaries imposed by law which were incurred in the ordinary
course of business and which have not arisen to secure Indebtedness for
borrowed money, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, maritime Liens and
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other similar Liens arising in the ordinary course of business, and which
either (x) do not in the aggregate materially detract from the value of
such property or assets or materially impair the use thereof in the
operation of the business of the U.S. Borrower or any of its Subsidiaries
or (y) are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or asset subject to such Lien;
(iii) (x) Liens created by or pursuant to this Agreement and the
Security Documents (it being understood and agreed that the obligations
under or relating to the Intermediate Holdco Credit Documents may be
secured by the Intermediate Holdco Collateral pursuant to the U.S. Pledge
Agreement, on a "second-priority" basis to the TL Obligations (as defined
in the U.S. Pledge Agreement), all in accordance with the terms of the U.S.
Pledge Agreement) and (y) Liens (but only on Collateral of the U.S. Credit
Parties) created by or pursuant to the ABL Credit Agreement and the ABL
Security Documents, securing Indebtedness incurred pursuant to clause
(xvii) of Section 9.04(b), in favor of the ABL Collateral Agent for the
benefit of the ABL Secured Creditors, as in effect on the date hereof and
as amended, supplemented or modified from time to time in accordance with
the terms of the Intercreditor Agreement;
(iv) Liens in existence on the Restatement Effective Date which are
listed, and the property subject thereto described, in Schedule IX, but
only to the respective date, if any, set forth in such Schedule IX for the
removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does
not increase from that amount outstanding at the time of any such renewal,
replacement or extension and (y) any such renewal, replacement or extension
does not encumber any additional assets or properties of the U.S. Borrower
or any of its Subsidiaries;
(v) Liens (x) arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09, (y)
arising in connection with the deposit or payment of cash or other Property
with or to any court or other governmental authority in connection with any
pending claim or litigation and (z) arising in connection with the deposit
of cash or other Property in connection with the issuance of stay and
appeal bonds, provided that the Fair Market Value of all Property
(including cash) subject to Liens pursuant to this clause (v) (whether
pledged, paid, deposited or otherwise) shall not exceed at any time the sum
of (1) $75,000,000 (net of any insurance proceeds actually received (and
not returned) by the U.S. Borrower and its Subsidiaries in connection
therewith) plus (2) in the case of Properties of Subsidiaries of the U.S.
Borrower located outside the United States and subject to a Lien pursuant
to this clause (v), an additional $50,000,000 (net of any insurance
proceeds actually received (and not returned) by the U.S. Borrower and its
Subsidiaries in connection therewith), if (and only if), in the case of
this sub-clause (2), the U.S. Borrower shall have caused to be delivered to
the Administrative Agent an opinion of counsel in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent to the
effect that such counsel expects a favorable judicial outcome with respect
to the judgment, decree, attachment, claim or litigation that gave rise to
the Lien on the respective Property, provided, further, however, that (I)
in no event shall the Fair Market Value of all Property
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(including cash) of Holdings and its Subsidiaries located in the United
States and subject to Liens pursuant to this clause (v) (whether pledged,
paid, deposited or otherwise) exceed $25,000,000 at any time and (II) in
the case of any non-consensual attachment on the Property of any Subsidiary
of the U.S. Borrower located outside the United States, the Fair Market
Value of such Property shall not be included for purposes of calculating
compliance with the immediately preceding proviso;
(vi) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the U.S. Borrower and
its Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the U.S. Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes not described in Section 9.03(i)), surety and
customs bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of (I) obligations for the payment of borrowed money
and (II) stay and appeal bonds and other obligations described in Section
9.03(v) above) or (z) to secure the performance by the U.S. Borrower and
its Subsidiaries of leases of Real Property, to the extent incurred or made
in the ordinary course of business consistent with past practices, provided
that the aggregate Fair Market Value of all Property pledged or deposited
at any time pursuant to preceding sub-clauses (y) and (z) shall not exceed
$25,000,000 in the aggregate (it being understood that letters of credit
and bank guaranties issued in support of customs bonds, licensing
arrangements and similar obligations do not constitute Property pledged or
deposited to support such obligations);
(vii) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the U.S. Borrower or any of its Subsidiaries;
(viii) (x) Permitted Encumbrances and (y) easements, rights-of-way,
restrictions, encroachments, municipal and zoning ordinances and other
similar charges or encumbrances, and minor title deficiencies, in each case
not securing Indebtedness and not materially interfering with the conduct
of the business of Holdings or any of its Subsidiaries;
(ix) Liens arising from or related to precautionary UCC financing
statements regarding operating leases entered into by the U.S. Borrower and
its Subsidiaries in the ordinary course of business;
(x) Liens upon assets of the U.S. Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations permitted pursuant to Section
9.04(b)(iv), provided that (x) such Liens only serve to secure the payment
of Indebtedness arising under such Capitalized Lease Obligation and (y) the
Lien encumbering the asset giving rise to the Capitalized Lease Obligation
does not encumber any other asset of the U.S. Borrower or any of its
Subsidiaries;
(xi) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price
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within 30 days after the respective purchase) of assets acquired after the
Restatement Effective Date by the U.S. Borrower and its Subsidiaries,
provided that (x) any such Liens attach only to the assets so purchased,
(y) the Indebtedness secured by any such Lien does not exceed 100% of the
Fair Market Value or the purchase price of the property being purchased at
the time of the incurrence of such Indebtedness and (z) the Indebtedness
secured thereby is permitted to be incurred pursuant to Section
9.04(b)(iv);
(xii) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the U.S. Borrower
in existence at the time such Subsidiary is acquired pursuant to a
Permitted Acquisition, provided that (i) any Indebtedness that is secured
by such Liens is permitted to exist under Section 9.04(b)(vi) and (ii) such
Liens are not incurred in connection with, or in contemplation or
anticipation of, such Permitted Acquisition and do not attach to any other
asset of the U.S. Borrower or any of its Subsidiaries;
(xiii) restrictions imposed in the ordinary course of business and
consistent with past practices on the sale or distribution of designated
inventory pursuant to agreements with customers under which such inventory
is consigned by the customer or such inventory is designated for sale to
one or more customers;
(xiv) Liens in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xv) bankers' liens, rights of setoff and other similar liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more
of the accounts described below, in each case granted in the ordinary
course of business in favor of the bank or banks with which the accounts
are maintained, securing amounts owing to such bank with respect to cash
management and operating account arrangements, including those involving
pooled accounts and netting arrangements, provided that in no case shall
any such Liens secure (either directly or indirectly) the repayment of any
Indebtedness;
(xvi) Liens securing Permitted Refinancing Indebtedness permitted
pursuant to Section 9.04(b)(vii) to the extent such Liens comply with
clause (b)(ii) of the definition of Permitted Refinancing Indebtedness;
(xvii) Liens on the assets of a Foreign Subsidiary (other than the
Bermuda Partnership) which is not a Foreign Credit Party securing
Indebtedness incurred by such Foreign Subsidiary in accordance with the
terms of Section 9.04(b)(viii);
(xviii) Liens over promissory notes evidencing grower loans pledged in
favor of financial institutions securing Indebtedness permitted to be
incurred pursuant to clause (x) of Section 9.04(b)(xix);
(xix) other Liens of the U.S. Borrower or any Subsidiary of the U.S.
Borrower that (x) were not incurred in connection with borrowed money, (y)
do not encumber any Property of the U.S. Borrower or any of its
Subsidiaries the Fair Market Value of which exceeds the amount of the
Indebtedness or other obligations secured by such Property or materially
impair the use of such Property in the operation of the business of the
U.S.
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Borrower or such Subsidiary and (z) do not secure obligations in excess of
$100,000,000 in the aggregate for all such Liens; and
(xx) until the Intermediate Holdco Prepayment Consummation, Liens may
be created (and exist) on the Intermediate Holdco Prepayment Funds (and
proceeds thereof) in favor of the Intermediate Holdco Paying Agent to
secure the repayment of the Intermediate Holdco Indebtedness as required
pursuant to Sections 5.08 and 8.21 hereof.
In connection with the granting of Liens of the type described in clauses (iv),
(x), (xi), (xii), (xvi), (xvii), (xix) and (xx) of this Section 9.03 by the U.S.
Borrower or any of its Subsidiaries, the Administrative Agent and the Collateral
Agent shall be authorized, at the request of any Credit Agreement Party, to take
any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the assets subject to such Liens).
9.04 Indebtedness. (a) No Credit Agreement Party will, nor will permit
any of its Subsidiaries to, contract, create, incur, assume or suffer to exist
(collectively, "incur") any Indebtedness; provided, however, that the U.S.
Borrower and each Domestic Subsidiary of the U.S. Borrower which is a U.S.
Credit Party may incur Indebtedness (which may be guaranteed by any U.S. Credit
Party) so long as: (i) the Total Leverage Ratio at such time does not exceed
5.50:1.00; (ii) the Senior Secured Leverage Ratio at such time does not exceed
3.00:1.00 (in each case, both immediately prior to the incurrence of such
Indebtedness and immediately after giving effect thereto); and (iii) no Default
or Event of Default then exists or would exist immediately after the respective
incurrence.
(b) The foregoing limitations in Section 9.04(a) will not apply to the
following (each, a "Permitted Indebtedness"):
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Scheduled Existing Indebtedness outstanding on the Restatement
Effective Date and listed on Schedule IV, without giving effect to any
subsequent extension, renewal or refinancing thereof, except that Scheduled
Existing Indebtedness may be refinanced through one or more issuances of
Permitted Refinancing Indebtedness in accordance with Section 9.04(b)(vii)
below;
(iii) Indebtedness of (x) the Borrowers under Interest Rate Protection
Agreements entered into to protect them against fluctuations in interest
rates in respect of Indebtedness otherwise permitted under this Agreement
and (y) Holdings under an Interest Rate Protection Agreement entered into
to protect it against fluctuations in interest rates in respect of the
Wellbeing Project Financing, in each case, so long as the entering into of
such Interest Rate Protection Agreements are bona fide hedging activities
and are not for speculative purposes;
(iv) Capitalized Lease Obligations and Indebtedness of the U.S.
Borrower and its Subsidiaries representing purchase money Indebtedness
secured by Liens permitted
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pursuant to Section 9.03(xi), provided that the sum of (x) the aggregate
Capitalized Lease Obligations outstanding at any time plus (y) the
aggregate principal amount of such purchase money Indebtedness outstanding
at any time shall not exceed $25,000,000;
(v) intercompany Indebtedness of (w) the U.S. Borrower and its
Subsidiaries to the extent permitted by Sections 9.05(vi) and (xvii), (x)
the U.S. Borrower owed to Intermediate Holdco to the extent permitted by
Section 9.05(xxii), (y) Intermediate Holdco owed to the U.S. Borrower or
Holdings to the extent permitted by Section 9.05(xxi) or (xxii), as the
case may be, and (z) Holdings owed to Intermediate Holdco to the extent
permitted by Section 9.05(xxi);
(vi) Indebtedness of a Subsidiary of the U.S. Borrower acquired
pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of
a Permitted Acquisition of an asset securing such Indebtedness) (such
Indebtedness, "Permitted Acquired Debt"), provided that (x) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (y) the aggregate
principal amount of all Indebtedness outstanding pursuant to this Section
9.04(b) (vi) at any time (exclusive of any such Indebtedness held by a
Qualified Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries), when added to the aggregate principal amount of
Permitted Refinancing Indebtedness outstanding pursuant to Section
9.04(b)(vii) at any time (except to the extent incurred to refinance
Scheduled Existing Indebtedness or Permitted Acquired Debt held by a
Qualified Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries and successive refinancings of the foregoing),
shall not exceed $50,000,000;
(vii) Permitted Refinancing Indebtedness, so long as (x) no Specified
Default or Event of Default is in existence at the time of the incurrence
of such Permitted Refinancing Indebtedness and immediately after giving
effect thereto and (y) the aggregate principal amount of Permitted
Refinancing Indebtedness outstanding pursuant to this Section 9.04(b)(vii)
at any time (except to the extent incurred to refinance Scheduled Existing
Indebtedness or Permitted Acquired Debt held by a Qualified Obligor which
is not guaranteed by Holdings or any of its other Subsidiaries and is not
secured by a Lien on any Property of Holdings or any of its Subsidiaries
and successive refinancings of the foregoing), when added to the aggregate
principal amount of Permitted Acquired Debt outstanding pursuant to Section
9.04(b)(vi) at any time (exclusive of any such Indebtedness held by a
Qualified Obligor which is not guaranteed by Holdings or any of its other
Subsidiaries and is not secured by a Lien on any Property of Holdings or
any of its Subsidiaries), shall not exceed $50,000,000;
(viii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower
(other than the Bermuda Partnership) under lines of credit to any such
Foreign Subsidiary from Persons other than Holdings or any of its
Subsidiaries, the proceeds of which Indebtedness are used for such Foreign
Subsidiary's working capital and other general corporate purposes, provided
that the aggregate principal amount of all such Indebtedness outstanding at
any time for all such Foreign Subsidiaries shall not exceed $50,000,000;
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(ix) Indebtedness of Holdings under Shareholder Subordinated Notes
issued pursuant to Section 9.06(ii), so long as the aggregate outstanding
principal amount of Shareholder Subordinated Notes does not at any time
exceed $5,000,000;
(x) additional unsecured Indebtedness of the U.S. Borrower consisting
of unsecured guarantees by such Borrower of (x) obligations (which
guaranteed obligations do not themselves constitute Indebtedness) of one or
more Wholly-Owned Subsidiaries of the U.S. Borrower, (y) leases pursuant to
which one or more Wholly-Owned Subsidiaries of the U.S. Borrower are the
respective lessees and (z) Indebtedness of Wholly-Owned Subsidiaries of the
U.S. Borrower of the type permitted pursuant to Section 9.04(b)(xiv);
(xi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business, so long as such Indebtedness is
extinguished within five Business Days of the incurrence thereof;
(xii) Indebtedness in respect of (x) Other Hedging Agreements to the
extent permitted by clause (x) of Section 9.05(xii) and (y) Commodity
Agreements to the extent permitted by clause (y) of Section 9.05(xii);
(xiii) (x) Indebtedness of the U.S. Borrower or any of its
Subsidiaries evidenced by completion guarantees and performance and surety
bonds (but excluding appeal, performance and other bonds and/or guaranties
issued in respect of obligations arising in connection with litigation)
incurred in the ordinary course of business for purposes of insuring the
performance of the U.S. Borrower or such Subsidiary in an aggregate amount
not to exceed $50,000,000 at any time outstanding and (y) Indebtedness of
the U.S. Borrower or any of its Subsidiaries evidenced by appeal,
performance and other bonds and/or guaranties issued in respect of
obligations arising in connection with litigation for purposes of insuring
the performance of the U.S. Borrower or such Subsidiary in an aggregate
amount not to exceed $50,000,000 at any time outstanding;
(xiv) Indebtedness of the U.S. Borrower or any Subsidiary of the U.S.
Borrower arising from agreements of the U.S. Borrower or a Subsidiary of
the U.S. Borrower providing for indemnification, adjustment of purchase
price or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary of
the U.S. Borrower permitted under this Agreement (other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary for the purpose of financing such
acquisition), provided that the maximum assumable liability (as measured by
the reserves reasonably established on such Person's financial statements)
in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the U.S. Borrower and its Subsidiaries in
connection with such dispositions;
(xv) unsecured Indebtedness of the U.S. Borrower evidenced by a
guaranty of the Indebtedness or other obligations of any other Person
(including Indebtedness of
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Foreign Subsidiaries permitted pursuant to Section 9.04(b)(viii) above), so
long as the aggregate amount of the Contingent Obligations of the U.S.
Borrower pursuant to this Section 9.04(b)(xv) does not exceed $25,000,000
at any time;
(xvi) (I) unsecured Indebtedness of the U.S Borrower incurred under
the Existing 2011 Senior Notes and the Existing 2011 Senior Notes Indenture
and of the U.S. Subsidiary Guarantors (and so long as same remain U.S.
Subsidiary Guarantors) under senior subordinated guarantees of the
obligations of the U.S. Borrower provided under the Existing 2011 Senior
Notes Documents to which they are a party, in an aggregate principal amount
not to exceed $200,000,000 (less the amount of any repayments of principal
thereof after the Restatement Effective Date), (II) unsecured Indebtedness
of the U.S Borrower incurred under the Existing 2009 Senior Notes and the
Existing 2009 Notes Indenture and of the U.S. Subsidiary Guarantors (and so
long as same remain U.S. Subsidiary Guarantors) under senior subordinated
guarantees of the obligations of the U.S. Borrower provided under the
Existing 2009 Senior Notes Documents to which they are a party, in an
aggregate principal amount not to exceed $350,000,000 (less the amount of
any repayments of principal thereof after the Restatement Effective Date),
(III) unsecured Indebtedness of the U.S Borrower incurred under the
Existing 2013 Senior Notes and the Existing 2013 Notes Indenture and of the
U.S. Subsidiary Guarantors (and so long as same remain U.S. Subsidiary
Guarantors) under senior subordinated guarantees of the obligations of the
U.S. Borrower provided under the Existing 2013 Senior Notes Documents to
which they are a party, in an aggregate principal amount not to exceed
$155,000,000 (less the amount of any repayments of principal thereof after
the Restatement Effective Date), (IV) unsecured Indebtedness of the U.S
Borrower incurred under Permitted Senior Notes and the other Permitted
Senior Notes Documents and of the U.S. Subsidiary Guarantors (and so long
as same remain U.S. Subsidiary Guarantors) under senior subordinated
guarantees of the obligations of the U.S. Borrower provided under the
Permitted Senior Notes Documents to which they are a party, so long as such
Indebtedness is incurred in accordance with the requirements of the
definition of Permitted Senior Notes, (V) unsecured Indebtedness of the U.S
Borrower incurred under the Existing 2010 Senior Notes and the Existing
2010 Senior Notes Indenture and of the U.S. Subsidiary Guarantors (and so
long as same remain U.S. Subsidiary Guarantors) under senior subordinated
guarantees of the obligations of the U.S. Borrower provided under the
Existing 2010 Senior Notes Documents to which they are a party, in an
aggregate principal amount not to exceed $400,000,000 (less the amount of
any repayments of principal thereof after the Restatement Effective Date)
and (VI) on or prior to the Intermediate Holdco Prepayment Date,
Indebtedness of Intermediate Holdco and Corporate Holdco under the
Intermediate Holdco Credit Documents in an aggregate principal amount at
any time outstanding not to exceed $150,000,000 (as such amount may be
reduced by any repayments of principal of the Intermediate Holdco
Indebtedness), and (VII) unsecured Indebtedness of the U.S Borrower
incurred under the Permitted Refinancing Senior Notes and the other
Permitted Refinancing Senior Notes Documents and of the U.S. Subsidiary
Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under
senior subordinated guarantees of the obligations of the U.S. Borrower
provided under the Permitted Refinancing Senior Notes Documents to which
they are a party, so long as such Indebtedness is incurred in accordance
with the requirements of the definition of Permitted Refinancing Senior
Notes;
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(xvii) Holdings, Intermediate Holdco, the U.S. Borrower and the U.S.
Subsidiary Guarantors may incur and remain liable with respect to the
Indebtedness under the ABL Credit Agreement and the other ABL Credit
Documents; provided, however, that the aggregate principal amount of
Indebtedness thereunder shall not exceed (as measured on each date of
incurrence pursuant to this clause (xvii)) the greater of (I) $400,000,000
and (II) the sum of (x) 80% of the net book value of the accounts
receivable of the U.S. Borrower and its Domestic Subsidiaries and (y) 60%
of the net book value of the inventory of the U.S. Borrower and its
Domestic Subsidiaries, with any determinations pursuant to this clause (II)
to be made on the date of each incurrence of Indebtedness pursuant to this
clause (II) based on the most recent financial statements that are
available to the U.S. Borrower;
(xviii) Indebtedness of Foreign Subsidiaries of the U.S. Borrower
under bank guaranties and letters of credit issued by financial
institutions (on behalf of such Foreign Subsidiaries) in an aggregate
amount not to exceed $50,000,000 at any time;
(xix) (x) Indebtedness of Foreign Subsidiaries incurred in connection
with grower loan programs in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding and (y) unsecured Indebtedness of the
U.S. Borrower evidenced by a guaranty of Indebtedness permitted pursuant to
preceding subclause (x) of this Section 9.04(b)(xix);
(xx) Indebtedness of the U.S. Borrower or any of its Subsidiaries
incurred in connection with vehicle inventory loans in an aggregate
principal amount not to exceed $5,000,000 at one time outstanding;
(xxi) Indebtedness of the U.S. Borrower which may be deemed to exist
under its non-qualified excess savings plan for employees;
(xxii) Indebtedness of Holdings under the Wellbeing Project Financing
Documents in an aggregate principal amount at any time outstanding not to
exceed the Wellbeing Project Financing Debt Cap Amount at such time, so
long as (A) such Indebtedness is incurred in accordance with the
requirements of the definition of "Wellbeing Project Financing" and (B) no
Default or Event of Default is in existence at the time of the respective
incurrence of such Wellbeing Project Financing and immediately after giving
effect thereto; and
(xxiii) additional unsecured Indebtedness of the U.S. Borrower and its
Subsidiaries (other than the Bermuda Partnership Partners and the Bermuda
Partnership) not otherwise permitted hereunder not exceeding $100,000,000
in aggregate principal amount at any time outstanding, provided that no
such additional Indebtedness shall be incurred at any time a Default or
Event of Default then exists or would result therefrom.
In addition, notwithstanding anything to the contrary contained above
in clauses (a) and (b) of this Section 9.04, (x) in no event shall any
Subsidiary of Holdings guarantee any Indebtedness of Holdings under any
Wellbeing Project Financing Document or incur any other obligation under, or
with respect to, any Wellbeing Project Financing Document having any
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element of recourse to such Subsidiary or to such Subsidiary's assets or
properties and (y) Holdings shall not permit any Unrestricted Wellbeing Joint
Venture to incur any Indebtedness or any other obligation having any element of
recourse to any Subsidiary of Holdings or to any assets or properties of any
Subsidiary of Holdings.
9.05 Advances; Investments; Loans. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, directly or indirectly, lend money or
extend credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other Equity Interest in, or make any
capital contribution to, any Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except:
(i) (w) the U.S. Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents; (x) Intermediate Holdco may hold cash and Cash
Equivalents (I) in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (II)
representing the proceeds of any Indebtedness permitted to be incurred, or
Dividends permitted to be received, by it pursuant to the terms of this
Agreement, so long as (in the case of preceding subclause (II))
Intermediate Holdco utilizes such cash and/or Cash Equivalents within the
time periods required, and for the purposes permitted, by this Agreement,
(y) Corporate Holdco may hold cash and Cash Equivalents in a de minimis
amount representing proceeds from the initial capital contribution made in
connection with its formation and (z) Holdings may hold cash and Cash
Equivalents (I) in a de minimis amount representing proceeds from the
initial capital contribution made in connection with its formation and (II)
representing the proceeds of any Indebtedness permitted to be incurred, or
Dividends permitted to be received, by it pursuant to the terms of this
Agreement (including cash and Cash Equivalents held by Holdings
representing proceeds from the Wellbeing Project Financing), so long as (in
the case of preceding subclause (II)) Holdings utilizes such cash or Cash
Equivalents within the time periods required, and for the purposes
permitted, by this Agreement;
(ii) the U.S. Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the U.S. Borrower or such
Subsidiary;
(iii) the U.S. Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers, trade creditors, licensees,
licensors and customers and in good faith settlement of delinquent
obligations of, and other disputes with, suppliers, trade creditors,
licensees, licensors and customers arising in the ordinary course of
business;
(iv) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(b)(iii) shall be permitted;
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(v) (x) Investments constituting Intercompany Scheduled Existing
Indebtedness in existence on the Restatement Effective Date (and any
refinancings thereof permitted pursuant to Section 9.04(b)(vii) and
consistent with the definition of Permitted Refinancing Indebtedness) and
(y) such other Investments in existence on the Restatement Effective Date
and listed on Schedule VI (without giving effect to any additions thereto
or replacements thereof); provided that any additional Investments made
with respect to the Investments described in preceding subclause (y) of
this Section 9.05(v) shall be permitted only if independently justified
under the other provisions of this Section 9.05;
(vi) (u) Qualified U.S. Obligors (other than Holdings, Intermediate
Holdco and Corporate Holdco) may make intercompany loans to each other, (v)
Qualified Non-U.S. Obligors may make intercompany loans to each other, (w)
Qualified U.S. Obligors (other than Holdings, Intermediate Holdco and
Corporate Holdco) may make intercompany loans to any Qualified Non-U.S.
Obligor, (x) Qualified Obligors and Foreign Subsidiary Guarantors that are
not Qualified Obligors may make intercompany loans to any Foreign
Subsidiary of the U.S. Borrower that is not a Qualified Obligor, (y) any
Wholly-Owned Foreign Subsidiary of the U.S. Borrower may make intercompany
loans to any Qualified Obligor and (z) Non-Guarantor Subsidiaries may make
intercompany loans to each other and to any Foreign Credit Party, provided
that (I) unless the respective obligor under such intercompany loan
reasonably determines that the execution, delivery and performance of an
Intercompany Note is prohibited by, or that such Intercompany Note would
not be enforceable against such obligor under, applicable local law, any
such intercompany loan made pursuant to this Section 9.05(vi) (other than
any such loan made to a Non-Wholly Owned Subsidiary) shall be evidenced by
an Intercompany Note, (II) at no time shall the aggregate outstanding
principal amount of all such intercompany loans made pursuant to subclause
(w) of this Section 9.05(vi) above (exclusive of loans made to Qualified
Non-U.S. Obligors which are promptly on-lent by such Qualified Non-U.S.
Obligors to Foreign Subsidiaries that are not Qualified Obligors in
reliance on subclause (x) above), when added to the aggregate amount of
capital contributions made pursuant to (and in reliance on) Section
9.05(viii)(y) (for this purpose, taking the Fair Market Value of any
Property (other than cash) so contributed at the time of such
contribution), exceed $200,000,000 (determined without regard to
write-downs or write-offs thereof), (III) at no time shall the aggregate
outstanding principal amount of all such intercompany loans made pursuant
to subclause (x) of this Section 9.05(vi) above (determined without regard
to write-downs or write-offs thereof), when added to the aggregate amount
of capital contributions made pursuant to (and in reliance on) Section
9.05(viii)(z) (for this purpose, taking the Fair Market Value of any
Property (other than cash) so contributed at the time of such
contribution), exceed $150,000,000, (IV) no intercompany loans may be made
pursuant to subclause (w) or (x) of this Section 9.05(vi) at any time any
Specified Default or any Event of Default is in existence (or would be in
existence after giving effect thereto), (V) subject to the exception
specified in the proviso to Section 9.01(g), each intercompany loan made
pursuant to this Section 9.05(vi) shall be subject to subordination as, and
to the extent required by, the Intercompany Subordination Agreement and
(VI) any intercompany loans made pursuant to this Section 9.05(vi) shall
cease to be permitted hereunder if the obligor or obligee thereunder ceases
to constitute a Qualified Obligor or a Foreign Subsidiary of the U.S.
Borrower as contemplated above;
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(vii) (x) loans by the U.S. Borrower and its Subsidiaries to officers,
employees and directors of Holdings and its Subsidiaries for bona fide
business purposes, in each case incurred in the ordinary course of
business, in an aggregate outstanding principal amount not to exceed
$5,000,000 at any time outstanding (determined without regard to any
write-downs or write-offs of such loans and advances) shall be permitted
and (y) advances of reimbursable expenses by the U.S. Borrower and its
Subsidiaries to officers, employees and directors of Holdings and its
Subsidiaries for bona fide purposes, in each case incurred in the ordinary
course of business;
(viii) (u) any Wholly-Owned Foreign Subsidiary of the U.S. Borrower
may make capital contributions to any Qualified Obligor, (v) any Qualified
U.S. Obligor may make capital contributions to any of its direct
Wholly-Owned Subsidiaries that is a Qualified U.S. Obligor, (w) any
Qualified Non-U.S. Obligor may make capital contributions to any of its
direct Wholly-Owned Subsidiaries that is a Qualified Non-U.S. Obligor, (x)
any Non-Guarantor Subsidiary may make capital contributions to any of its
direct Wholly-Owned Subsidiaries that is a Non-Guarantor Subsidiary or a
Foreign Credit Party, (y) any Qualified U.S. Obligor may make capital
contributions to any of its direct Wholly-Owned Subsidiaries that is
Qualified Non-U.S. Obligor and (z) any Qualified Obligor and any Foreign
Subsidiary Guarantor that is not a Qualified Obligor may make capital
contributions to any of their respective direct Foreign Subsidiaries that
is not a Qualified Obligor; provided that (I) at no time shall the
aggregate amount of the capital contributions made pursuant to subclause
(y) of this Section 9.05(viii) (for this purpose, (1) taking the Fair
Market Value of any Property (other than cash) so contributed at the time
of such contribution and (2) excluding capital contributions made to a
Qualified Non-U.S. Obligor which are promptly contributed, in turn, to a
Foreign Subsidiary of such Qualified Non-U.S. Obligor that is not a
Qualified Obligor in reliance on subclause (z) above), when added to the
aggregate outstanding principal amount of all intercompany loans made
pursuant to subclause (w) of Section 9.05(vi) above (determined without
regard to write-downs or write-offs thereof), exceed $200,000,000, (II) at
no time shall the aggregate amount of the capital contributions made
pursuant to subclause (z) of this Section 9.05(viii) (for this purpose,
taking the Fair Market Value of any Property (other than cash) so
contributed at the time of such contribution), when added to the aggregate
outstanding principal amount of all intercompany loans made pursuant to
subclause (x) of Section 9.05(vi) above (determined without regard to
write-downs or write-offs thereof), exceed $150,000,000 and (III) no
contributions may be made pursuant to subclause (y) or (z) of this Section
9.05(viii) at any time any Specified Default or any Event of Default is in
existence (or would be in existence after giving effect thereto);
(ix) the Borrowers and the Subsidiary Guarantors may make Permitted
Acquisitions in accordance with the relevant requirements of Section 8.15
and the component definitions therein;
(x) the U.S. Borrower and its Subsidiaries may own the capital stock
of, or other Equity Interests in, their respective Subsidiaries created or
acquired in accordance with the terms of this Agreement;
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(xi) the U.S. Borrower and its Subsidiaries may acquire and hold
non-cash consideration issued by the purchaser of assets in connection with
a sale of such assets to the extent permitted by Sections 9.02(v), (xiv)
and (xviii);
(xii) the U.S. Borrower and its Subsidiaries may enter into (x) Other
Hedging Agreements in the ordinary course of business providing protection
against fluctuations in currency values in connection with the operations
of the U.S. Borrower or any of its Subsidiaries and (y) Commodity
Agreements in the ordinary course of business providing protection against
fluctuations in prices of commodities used in the operations of the U.S.
Borrower and its Subsidiaries, in each case, so long as management of the
U.S. Borrower or such Subsidiary, as the case may be, has determined in
good faith that the entering into of such Other Hedging Agreements or
Commodity Agreements, as the case may be, are bona fide hedging activities
and are not for speculative purposes;
(xiii) Holdings may acquire and hold obligations of one or more
officers, directors or other employees of Holdings or any of its
Subsidiaries in connection with such officers', directors' or employees'
acquisition of shares of capital stock of Holdings, so long as no cash is
paid by Holdings or any of its Subsidiaries to such officers, directors or
employees in connection with the acquisition of any such obligations;
(xiv) loans or advances by any Subsidiary of Holdings in connection
with grower loan programs; provided that (I) at no time shall the aggregate
outstanding principal amount of all such loans and advances made pursuant
to this Section 9.05(xiv) exceed $75,000,000 (determined without regard to
write-downs or write-offs thereof), (II) no loans or advances may be made
pursuant to this Section 9.05(xiv) at any time any Specified Default or any
Event of Default is in existence (or would be in existence after giving
effect thereto), and (III) in the event a loan or advance made by a Credit
Party pursuant to this Section 9.05(xiv) is evidenced by a promissory note,
such promissory note shall be pledged to the Collateral Agent pursuant to
the relevant Security Document (except to the extent local law or the
relevant grower loan documents prohibit such pledge or such note is
required to be pledged to secure Indebtedness incurred pursuant to clause
(x) of Section 9.04(b)(xix));
(xv) so long as no Default or Event of Default then exists or would
result therefrom, the U.S. Borrower and its Subsidiaries may acquire Equity
Interests in Persons (who, after giving effect to such acquisition, become
Non-Wholly Owned Subsidiaries of the U.S. Borrower or such Subsidiary);
provided that the aggregate amount of the Investments made pursuant to this
Section 9.05(xv) after the Restatement Effective Date shall not exceed
$50,000,000 (without regard to any write-downs or write-offs thereof);
(xvi) any Non-Wholly Owned Subsidiary of the U.S. Borrower may make
loans to its shareholders generally so long as (x) the U.S. Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary
making such loans receives at least its proportionate share of such loans
(based upon its relative holding of the Equity Interests in the Subsidiary
making such loans), (y) unless the entering into of the Intercompany
Subordination Agreement requires the consent of the minority shareholder of
such Non-Wholly Owned Subsidiary (and such consent is not obtained), such
Non-Wholly-Owned
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Subsidiary (as obligee of such loan) and the U.S. Borrower or such other
Subsidiary (as obligor of such loan) shall be subject to the provisions of
the Intercompany Subordination Agreement and (z) the aggregate outstanding
principal amount of all loans pursuant to this Section 9.05(xvi) which are
not subject to the subordination provisions of the Intercompany
Subordination Agreement shall not exceed $50,000,000 at any time;
(xvii) Investments constituting guaranties permitted by Section 9.04;
(xviii) the Bermuda Partnership Partners may make additional
Investments in the Bermuda Partnership not otherwise permitted by this
Section, so long as (w) the Bermuda Partnership promptly (and in any event
within one Business Day of receipt thereof) uses 100% of the cash proceeds
of such Investment to make a prepayment on the intercompany loan owing by
it to the Bermuda Borrower and incurred pursuant to the Intercompany
Distribution Transactions, (x) the Bermuda Borrower uses all of the
proceeds of such prepayment within one Business Day of the date of receipt
thereof to prepay Term Loans owing by it in accordance with the
requirements of Section 4.01(vii), (y) if any U.S. Borrower Incremental
Term Loans are then outstanding, the U.S. Borrower makes a concurrent
prepayment of U.S. Borrower Incremental Term Loans in accordance with the
requirements of Section 4.01(vii) and (z) any Investment in the form of an
intercompany loan or advance pursuant to this Section 9.05(xviii) shall be
subject to subordination as, and to the extent required by, the
Intercompany Subordination Agreement;
(xix) so long as no Default or Event of Default then exists or would
result therefrom, the U.S. Borrower and its Subsidiaries may make
Investments not otherwise permitted by Section 9.05(i) through (xviii) and
succeeding Section 9.05(xxi); provided that the aggregate amount of the
Investments made pursuant to this Section 9.05(xix) after the Restatement
Effective Date shall not exceed $100,000,000 (without regard to any
write-downs or write-offs thereof)
(xx) so long as no Default or Event of Default then exists or would
result therefrom, Holdings may from time to time (I) make cash common
equity contributions, and/or intercompany loans to, Westlake Wellbeing
Company, and (II) make cash common equity contributions, and/or
intercompany loans, to Wellbeing IP Holdco and/or Wellbeing Edco; provided
that (x) Holdings shall at all times own or hold at least 85% of the Equity
Interests of Westlake Wellbeing Company (on a fully diluted basis) and at
least 50% of the Equity Interests of each of Wellbeing IP Holdco and
Wellbeing Edco (on a fully diluted basis), (y) all of the Equity Interests
of each of the Unrestricted Wellbeing Joint Ventures held by Holdings shall
have been delivered and pledged by Holdings to the Collateral Agent
pursuant to the U.S. Pledge Agreement and (z) each Investment made by
Holdings pursuant to this Section 9.05(xx) in the form of an intercompany
loan shall be evidenced by an Intercompany Note pledged to the Collateral
Agent pursuant to the U.S. Pledge Agreement;
(xxi) the U.S. Borrower may make intercompany loans to Intermediate
Holdco, and Intermediate Holdco may make intercompany loans to Holdings, at
the times and for the purposes described below, so long as (i) no Default
or Event of Default then exists or
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would result therefrom, (ii) the (x) Total Unutilized Revolving Loan
Commitment (as defined in the ABL Credit Agreement) or, if less, the amount
which could then be borrowed thereunder giving effect to "borrowing base"
or similar limitations on amounts permitted to be borrowed thereunder or
(y) in the event that the ABL Credit Agreement shall have been replaced or
refinancing, undrawn available amounts under other working capital
revolving credit facilities of the U.S. Borrower (determined based on the
relevant total commitments and borrowing base or other similar limitations,
as applicable), shall equal or exceed $30,000,000 immediately after giving
effect to each such intercompany loan), (iii) each such intercompany loan
is permitted pursuant to the terms of the ABL Credit Documents, the
Existing Senior Notes Documents, and, on and after the execution and
delivery thereof, the Permitted Senior Notes Documents and the Permitted
Refinancing Senior Notes Documents, (iv) no such intercompany loan by the
U.S. Borrower to Intermediate Holdco shall be made, unless the proceeds
thereof are promptly (and in any event within 5 Business Days of the making
of such intercompany loan or, in the case of following clause (C), by the
Intermediate Holdco Prepayment Date) (A) on-loaned by Intermediate Holdco
to Holdings for use within the time periods required by, and for the
purposes described in, immediately succeeding clause (v), (B) Dividended by
Intermediate Holdco to Holdings for use within the time periods required
by, and for the purposes described in, sub-clause (iv) of Section 9.06(ix)
or (C) utilized by Intermediate Holdco to pay amounts owing pursuant to the
Intermediate Holdco Indebtedness as contemplated by Section 8.21, (v) the
proceeds of each such intercompany loan received by Holdings shall be
utilized by Holdings promptly (and, in any event, within 30 days of the
receipt of such proceeds) to make an Investment in one or more Unrestricted
Wellbeing Joint Ventures pursuant to Section 9.05(xx) for the purposes of
financing the Wellbeing Project and/or the operations of the Unrestricted
Wellbeing Joint Ventures, and (vi) each such intercompany loan shall be
evidenced by an Intercompany Note pledged by the U.S. Borrower or
Intermediate Holdco, as the case may be, to the Collateral Agent pursuant
to the U.S. Pledge Agreement; and
(xxii) (x) Intermediate Holdco may make intercompany loans to the U.S.
Borrower with the proceeds from any Investment made in it by Holdings with
the proceeds of (I) any Equity Infusion or (II) Wellbeing Project
Financing, so long as each such intercompany loan shall be evidenced by an
Intercompany Note pledged by Intermediate Holdco to the Collateral Agent
pursuant to the U.S. Pledge Agreement and (y) Holdings may make
intercompany loans to Intermediate Holdco with the proceeds from (I) any
Equity Infusion or (II) the incurrence of any Wellbeing Project Financing,
so long as each such intercompany loan shall be evidenced by an
Intercompany Note pledged by Holdings to the Collateral Agent pursuant to
the U.S. Pledge Agreement.
9.06 Restricted Payments; etc. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in non-redeemable common stock or comparable common
equity interests of Holdings or any such Subsidiary, as the case may be) or
return any equity capital to, its stockholders, partners, members or other
equity holders or authorize or make any other distribution, payment or delivery
of property or cash to its stockholders, partners, members or other equity
holders as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock or
other Equity Interests, now or hereafter outstanding (or
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any warrants for or options or stock appreciation rights in respect of any of
such shares or other Equity Interests), or set aside any funds for any of the
foregoing purposes, and no Credit Agreement Party will permit any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock or other Equity Interests of any direct or
indirect parent of such Subsidiary now or hereafter outstanding (or any options
or warrants or stock appreciation rights issued by such Person with respect to
its capital stock or other Equity Interests) (all of the foregoing "Dividends")
or make any payments in respect of any outstanding Shareholder Subordinated
Notes or Intercompany Debt, except that:
(i) (x) any Subsidiary of the U.S. Borrower may pay Dividends to the
U.S. Borrower or any Wholly-Owned Subsidiary of the U.S. Borrower and (y)
any non-Wholly-Owned Subsidiary of the U.S. Borrower may pay cash Dividends
to its shareholders generally so long as the U.S. Borrower or its
respective Subsidiary which owns the Equity Interest in the Subsidiary
paying such Dividends receives at least its proportionate share thereof
(based upon its relative holding of the Equity Interests in the Subsidiary
paying such Dividends and taking into account the relative preferences, if
any, of the various classes of Equity Interests of such Subsidiary);
provided that any Dividend made pursuant to preceding clause (x) to any
Wholly-Owned Subsidiary that is not a Credit Party may only be made if (A)
(I) no Specified Default and no Event of Default then exists or would
result therefrom and (II) such Wholly-Owned Subsidiary promptly distributes
and/or transfer any Property received pursuant to such Dividend (directly
or indirectly through other Wholly-Owned Subsidiaries) to a Credit Party or
(B) the Subsidiary making such Dividend is not a Credit Party; provided,
however, that, subject to Section 9.01(d)(v), any such Dividend may be made
to the Bermuda Partnership notwithstanding the existence of an Event of
Default (other than an Event of Default under Section 10.01 or 10.05) so
long as (a) the Bermuda Partnership complies with clause (II) of the
preceding proviso and (b) the Bermuda Partnership Partners are (after
giving effect to the receipt of any Dividend from Bermuda Partnership) in
compliance with the requirements of Section 9.01(d);
(ii) Holdings may redeem or purchase shares of Holdings Common Stock
or options to purchase Holdings Common Stock, as the case may be, held by
former officers or employees of Holdings or any of its Subsidiaries
following the death, disability, retirement or termination of employment of
such officers or employees, provided that (w) the only consideration paid
by Holdings in respect of such redemptions and/or purchases shall be cash
and Shareholder Subordinated Notes, (x) the sum of (A) the aggregate amount
paid by Holdings in cash in respect of all such redemptions and/or
purchases plus (B) the aggregate amount of all principal and interest
payments made on Shareholder Subordinated Notes, shall not exceed
$2,000,000 in any Fiscal Year of Holdings, and (z) at the time of any
redemption or purchase pursuant to this Section 9.06(ii), no Specified
Default or Event of Default shall then exist or result therefrom;
(iii) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as (x) no Specified Default or Event of Default then exists
or would result therefrom and (y) the cash proceeds thereof are promptly
used by Intermediate Holdco to pay the cash Dividend described in
succeeding clause (B) and (B) Intermediate Holdco may pay cash Dividends to
Holdings, so long as (x) no Specified Default or Event of
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Default then exists or would result therefrom and (y) the cash proceeds
thereof are promptly used by Holdings for the purposes described in Section
9.06(ii);
(iv) (A) the U.S. Borrower may pay cash Dividends to Intermediate
Holdco, so long as the proceeds thereof are promptly used by Intermediate
Holdco to pay its operating expenses in the ordinary course of business
(including, without limitation, professional fees and expenses) and other
similar corporate overhead costs and expenses, (B) the U.S. Borrower may
pay cash Dividends to Intermediate Holdco, so long as Intermediate Holdco
promptly contributes such proceeds to Corporate Holdco and the proceeds of
such contribution are promptly used by Corporate Holdco to pay its
operating expenses in the ordinary course of business (including, without
limitation, professional fees and expenses) and other similar corporate
overhead costs and expenses and (C) the U.S. Borrower may pay cash
Dividends to Intermediate Holdco, which, in turn, may pay cash Dividends to
Holdings, so long as the proceeds thereof are promptly used by Holdings to
pay operating expenses in the ordinary course of its business (including,
without limitation, professional fees and expenses) and other similar
corporate overhead costs and expenses;
(v) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may in turn pay cash Dividends to Holdings, in the
amounts and at the times of any payment by Holdings in respect of its taxes
(or taxes of its consolidated group), provided that (x) the amount of cash
Dividends paid pursuant to this clause (v) to enable Holdings to pay taxes
at any time shall not exceed the amount of such taxes owing by Holdings at
such time and (y) any refunds received by Holdings attributable to the U.S.
Borrower or any of its Subsidiaries shall be promptly returned by Holdings
to Intermediate Holdco, and, in turn, by Intermediate Holdco to the U.S.
Borrower, provided, further, that (A) in no event shall the amount of
Dividends paid by the U.S. Borrower and its Subsidiaries pursuant to this
Section 9.06(v) in respect of any taxable year for which the U.S. Borrower
and any of its Subsidiaries are included in a consolidated federal income
tax return, or a consolidated, combined or unitary state or local tax
return with any Person other than the U.S. Borrower and its Subsidiaries
(such other Person or Persons included in such returns, together with the
U.S. Borrower and its Subsidiaries, the "Affiliated Group") exceed, in the
aggregate, the lesser of (I) the amount of such federal income tax or state
or local tax, as the case may be (the "Relevant Separate Tax Liability"),
that the U.S. Borrower and its Subsidiaries would have been obligated to
pay if the U.S. Borrower and its Subsidiaries had filed a separate
consolidated federal income tax return or a separate consolidated, combined
or unitary state or local tax return, as the case may be, for such year and
all prior taxable years (with the U.S. Borrower as the common parent of
such affiliated group) and (II) the product of (a) the federal income or
state or local tax liability, as the case may be, of the Affiliated Group
for such year and (b) a fraction, (x) the numerator of which is an amount
equal to the Relevant Separate Tax Liability of the U.S. Borrower and its
Subsidiaries for such year and (y) the denominator of which is the
aggregate of the total separate federal income, state or local tax
liability, as the case may be, that each member of the Affiliated Group
(treating the U.S. Borrower and its Subsidiaries as a single member and all
other members of the Affiliated Group as one separate member) would have
incurred for such year if such members had filed separate federal income
tax returns or separate
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consolidated, combined or unitary state or local tax returns, as the case
may be, for such year and all prior taxable years and (B) each Unrestricted
Wellbeing Joint Venture shall be required to contribute to Holdings (and
shall concurrently or prior to any payment of any Dividend by the U.S.
Borrower pursuant to this Section 9.06(v) have contributed to Holdings) its
allocable share (as reasonably determined by Holdings in good faith) of all
tax liabilities of Holdings and its consolidated Subsidiaries;
(vi) Holdings and its Subsidiaries may make payments with respect to
Intercompany Debt, so long as the respective payment is permitted to be
made in accordance with the terms of the Intercompany Subordination
Agreement; provided that, in no event shall the U.S. Borrower be permitted
to repay any Intercompany Debt incurred by it from Intermediate Holdco
pursuant to Section 9.05(xxii), unless the conditions set forth in
subclauses (i), (ii), (iii) and (iv) of Section 9.06(ix) shall have been
satisfied at such time (for such purposes, treating each reference to the
making of a Dividend in said subclauses as if it were a reference to the
repayment of such Intercompany Debt);
(vii) Holdings may make payments of interest and principal on the
Shareholder Subordinated Notes in accordance with the terms thereof, so
long as the sum of (A) the aggregate amount paid by Holdings in cash in
respect of all redemptions and/or purchases of Holdings Common Stock
pursuant to Section 9.06(ii) plus (B) the aggregate amount of all principal
and interest payments made on Shareholder Subordinated Notes, does not
exceed $2,000,000 in any Fiscal Year of Holdings;
(viii) Holdings may pay regularly scheduled Dividends on Qualified
Preferred Stock issued by it pursuant to the terms thereof solely through
the issuance of additional shares of such Qualified Preferred Stock rather
than in cash;
(ix) the U.S. Borrower may pay cash Dividends to Intermediate Holdco,
and Intermediate Holdco may pay cash Dividends to Holdings, at the times
and for the purposes described below, so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) the aggregate amount of
such cash Dividends shall not exceed the aggregate amount of cash common
equity contributions received by the U.S. Borrower from Intermediate Holdco
(including not more than $28,500,000 received prior to the Restatement
Effective Date), to and including the date of such cash Dividend, pursuant
to clause (v) of Section 9.05(viii), in each case only to the extent such
cash common equity contributions were funded by Intermediate Holdco with
proceeds from the incurrence of any Wellbeing Project Financing, (iii) each
such Dividend is permitted pursuant to the terms of the Existing Senior
Notes Documents and, on and after the execution and delivery thereof, the
Permitted Senior Notes Documents and the Permitted Refinancing Senior Notes
Documents, (iv) no such Dividend by the U.S. Borrower to Intermediate
Holdco shall be paid, unless the proceeds thereof are promptly (and in any
event within 5 Business Days of the payment of such Dividend) (A)
Dividended by Intermediate Holdco to Holdings for use within the time
periods required by, and for the purposes described in, immediately
succeeding clause (v) and/or (B) on-loaned by Intermediate Holdco to
Holdings for use within the time periods required by, and for the purposes
described in, sub-clause (v) of preceding Section 9.05(xxi) and (v) the
proceeds
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of each such Dividend received by Holdings shall be utilized by Holdings
promptly (and, in any event, within 30 days of the payment of such
Dividend) to make an Investment in one or more Unrestricted Wellbeing Joint
Ventures pursuant to Section 9.05(xx) for the purposes of financing the
Wellbeing Project and/or the operations of the Unrestricted Wellbeing Joint
Ventures;
(x) the Refinancing may be consummated in accordance with the
requirements of this Agreement;
(xi) so long as no Default and no Event of Default then exists or
would result therefrom, any Existing Senior Notes, any Permitted Senior
Notes and any Permitted Refinancing Senior Notes may be refinanced with any
Permitted Refinancing Senior Notes in accordance with the requirements of
this Agreement;
(xii) so long as no Specified Default and no Event of Default then
exists or would result therefrom, any Scheduled Existing Indebtedness, any
Permitted Acquired Debt and any Permitted Refinancing Indebtedness incurred
to refinance same may be refinanced with Permitted Refinancing Indebtedness
in accordance with the requirements of this Agreement; and
(xiii) in addition to the actions permitted above, the U.S. Borrower
and its Subsidiaries may make Investments (and, without duplication, may
repurchase or redeem (so long as any repurchased Indebtedness is promptly
cancelled) any Indebtedness otherwise described in Section 9.08(a)(i)) so
long as (I) no Default or Event of Default then exists or would result
therefrom, (II) the aggregate amount of cash expended pursuant to this
Section 9.06(xiii) to effect such Investments after the Restatement
Effective Date does not exceed the sum of (x) $50,000,000 and (y) the
aggregate amount of Retained Excess Cash Flow Amount at the time such
Investment is made and (III) to the extent any such Investment (or any part
thereof) is made in reliance on preceding clause (II)(y), calculations are
made by the U.S. Borrower of compliance with Section 9.04(a) (regardless of
whether any Indebtedness is then being incurred pursuant to said Section
9.04(a)) for the Calculation Period most recently ended prior to the date
of the respective repurchase or redemption (determined on a Pro Forma Basis
after giving effect to such Investment and the incurrence of any
Indebtedness to finance same), as set forth in a certificate by an
Authorized Officer of the U.S. Borrower furnished to the Administrative
Agent on the date of such Investment, and such calculations shall show
that, after giving effect to the respective Investment (and any other
contemporaneous Investments) and any Indebtedness being incurred in
connection therewith, the U.S. Borrower would be permitted to incur at
least $1 of additional Indebtedness pursuant to Section 9.04(a) at such
time; provided that, to the extent that such Investments constitute
redemptions and/or repurchases of Existing Senior Notes, Permitted Senior
Notes and/or Permitted Refinancing Senior Notes from time to time (whether
redeemed in accordance with the terms of the indenture therefor and/or
repurchased on the open market), all such Existing Senior Notes, Permitted
Senior Notes or Permitted Refinancing Senior Notes, as the case may be, so
repurchased or redeemed are promptly cancelled by the U.S. Borrower.
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9.07 Transactions with Affiliates. No Credit Agreement Party will, nor
will permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate of Holdings or any of its Subsidiaries other
than in the ordinary course of business and on terms and conditions
substantially as favorable to such Credit Agreement Party or such Subsidiary as
would be reasonably expected to be obtainable by such Credit Agreement Party or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided that the following shall in any event
be permitted: (i) the Transaction; (ii) intercompany transactions among the U.S.
Borrower and its Subsidiaries to the extent expressly permitted by Sections
9.02, 9.04, 9.05 and 9.06; (iii) the payment of consulting or other fees to the
U.S. Borrower by any of its Subsidiaries in the ordinary course of business;
(iv) customary fees to non-officer directors of the U.S. Borrower and its
Subsidiaries; (v) the U.S. Borrower and its Subsidiaries may enter into the
employment arrangements with respect to the procurement of services with their
respective officers and employees in the ordinary course of business; (vi)
Dividends may be paid by Holdings to the extent permitted by Section 9.06; (vii)
the payment of customary fees (excluding management fees) to the Agents and
their Affiliates for services rendered (including, without limitation, any
underwriting discounts and commissions); (viii) transactions between the U.S.
Borrower and/or any of its Subsidiaries and their respective Affiliates listed
on Schedule XIV hereto; and (ix) the California Disposition and any loan of all
or a portion of the Net Sale Proceeds therefrom to an Affiliate of the U.S.
Borrower, so long as (and only so long as) such transactions would not (in the
absence of this clause (ix) and, for such purpose, assuming same were in the
"ordinary course of business") give rise to a violation of this Section 9.07. In
no event shall any management, consulting or similar fee be paid or payable by
Holdings or any of its Subsidiaries to any Affiliate (other than the U.S.
Borrower or any other Credit Party), except as specifically provided in this
Section 9.07.
9.08 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; Issuances of Capital Stock; etc. (a) No Credit Agreement Party
will, and no Credit Agreement Party will permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption, repurchase or acquisition for value
of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for
the purpose of paying when due), or any prepayment, repurchase, redemption
or acquisition for value as a result of any asset sale, change of control
or similar event of any Existing Indebtedness or, after the incurrence or
issuance thereof, any Permitted Refinancing Indebtedness, any Shareholder
Subordinated Note, any Qualified Preferred Stock, any Permitted Acquired
Debt, any Permitted Senior Note or any Permitted Refinancing Senior Note,
except to the extent expressly permitted under Section 9.06(xi), (xii)
and/or (xiii) or, in the case of Permitted Acquired Debt, required by
Section 8.11(h);
(ii) amend or modify, or permit the amendment or modification of, any
provision of any Existing Senior Notes Document or, on and after the
execution and delivery thereof, any Wellbeing Project Financing Document,
any Permitted Senior Notes Document and any Permitted Refinancing Senior
Notes Document, in any such case other than any technical or clarifying
amendments, modifications or changes to any such
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Documents that are not in any way adverse to the interests of the Lenders
and do not relate to the subordination provisions contained therein or, in
the case of any Wellbeing Project Financing Document, amendments,
modifications or changes which do not result in the Wellbeing Project
Financing ceasing to meet the requirements of "Wellbeing Project Financing"
as set forth in the definition thereof; or
(iii) amend, modify or change any Permitted Acquired Debt, any
Permitted Refinancing Indebtedness, any Tax Allocation Agreement, any
Management Agreement, any Qualified Preferred Stock, its certificate of
incorporation (including, without limitation, by the filing or modification
of any certificate of designation), by-laws, certificate of partnership,
partnership agreement, certificate of limited liability company, limited
liability company agreement (or equivalent organizational documents) or any
agreement entered into by it, with respect to its capital stock or other
Equity Interests (including any Shareholders' Agreement), or enter into any
new Tax Allocation Agreement, Management Agreement or agreement with
respect to its capital stock or other Equity Interests, other than (A) any
change to Permitted Acquired Debt or Permitted Refinancing Indebtedness as
a result of the refinancing thereof as permitted by Section 9.08(a), (B)
any amendments or modifications to Permitted Refinancing Debt or Qualified
Preferred Stock consistent with the definitions thereof provided herein and
(C) any amendments, modifications or changes pursuant to this Section
9.08(a) and any such new agreements pursuant to this Section 9.08(a), (x)
which do not adversely affect the interests of the Lenders in any material
respect, (y), in the case of any Management Agreement, which does not
involve the payment by Holdings or any of its Subsidiaries of any amount
which could give rise to a violation of this Agreement and (z) any
amendment to such Person's respective certificates of incorporation or
other organizational documents to authorize the issuance of capital stock
or other Equity Interests otherwise permitted to be issued pursuant to the
terms of this Agreement.
(b) Neither Holdings nor any of its Subsidiaries shall designate any
Indebtedness (other than the Obligations) as "Designated Guarantor Senior Debt"
or "Designated Senior Debt" for purposes of the Existing Senior Notes Documents
or, on and after the execution and delivery thereof, the Permitted Senior Notes
Documents and the Permitted Refinancing Senior Notes Documents.
9.09 Limitation on Issuance of Equity Interests. (a) Holdings will not
issue (i) any Preferred Equity (or any options, warrants or rights to purchase
Preferred Equity) (other than Qualified Preferred Stock issued pursuant to
clause (c) below) or (ii) any redeemable common stock or equivalent common
Equity Interests.
(b) Neither Intermediate Holdco nor any Borrower shall, nor shall
permit any of its Subsidiaries to, issue any capital stock or other Equity
Interests (including by way of sales of treasury stock), except (i) for
transfers and replacements of then outstanding shares of capital stock or other
Equity Interests, (ii) for stock splits, stock dividends and additional
issuances which do not decrease the aggregate percentage ownership of Holdings
and its Subsidiaries in any class of the capital stock or other Equity Interests
of such Subsidiaries, (iii) in the case of Foreign Subsidiaries of the U.S.
Borrower, to qualify directors to the extent required by applicable law, (iv)
Subsidiaries formed after the Initial Borrowing Date pursuant to Section 9.11
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(or Section 9.14 of the Original Credit Agreement) may issue capital stock or
other Equity Interests in accordance with the requirements of Section 9.11 (or,
for periods prior to the Restatement Effective Date, Section 9.14 of the
Original Credit Agreement) and (v) issuances of Equity Interests (including
Preferred Equity) by any Wholly-Owned Subsidiary of the U.S. Borrower to one or
more other Wholly-Owned Subsidiaries of the U.S. Borrower. All capital stock or
other Equity Interests issued in accordance with this Section 9.09(b) shall, to
the extent required by the relevant Security Document, be delivered to the
Collateral Agent for pledge pursuant to such Security Document.
(c) Holdings may from time to time (i) issue Qualified Preferred
Stock, so long as (x) no Default or Event of Default shall exist at the time of
any such issuance or immediately after giving effect thereto, and (y) with
respect to each issuance of Qualified Preferred Stock, the gross cash proceeds
therefrom (or in the case of Qualified Preferred Stock directly issued as
consideration for a Permitted Acquisition, the Fair Market Value thereof of the
assets received therefor) shall be at least equal to 100% of the liquidation
preference thereof at the time of issuance and (ii) issue additional shares of
Qualified Preferred Stock to pay in kind regularly scheduled Dividends on
Qualified Preferred Stock theretofore issued in compliance with this Section
9.09(c).
9.10 Limitation on Certain Restrictions on Subsidiaries. No Credit
Agreement Party will, nor will permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
Equity Interests or participation in its profits owned by Holdings or any
Subsidiary of Holdings, or pay any Indebtedness owed to Holdings or a Subsidiary
of Holdings, (y) make loans or advances to Holdings or any Subsidiary of
Holdings or (z) transfer any of its properties or assets to Holdings or any of
its Subsidiaries, except for such encumbrances or restrictions existing under or
by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the U.S. Borrower or a Subsidiary of
the U.S. Borrower, (iv) customary provisions restricting assignment of any
licensing agreement (in which the U.S. Borrower or any of its Subsidiaries is
the licensee) or any other contract entered into by the U.S. Borrower or any
Subsidiary of the U.S. Borrower in the ordinary course of business, (v) any
agreement or instrument governing Permitted Acquired Debt, which encumbrance or
restriction is not applicable to any Person or the properties or assets of any
Person, other than the Person or the properties or assets of the Person acquired
pursuant to the respective Permitted Acquisition and so long as the respective
encumbrances or restrictions were not created (or made more restrictive) in
connection with or in anticipation of the respective Permitted Acquisition, (vi)
restrictions applicable to any Non-Wholly Owned Subsidiary existing at the time
of the acquisition thereof as a result of an Investment pursuant to Section 9.05
or a Permitted Acquisition effected in accordance with Section 8.15; provided
that the restrictions applicable to such joint venture are not made more
burdensome, from the perspective of the U.S. Borrower and its Subsidiaries, than
those as in effect immediately before giving effect to the consummation of the
respective Investment or Permitted Acquisition; (vii) any restriction or
encumbrance with respect to assets subject to Liens permitted by Sections
9.03(iv), (x), (xi), (xii) and (xvi); (viii) the Existing 2011 Senior Notes
Documents; (ix) the Existing 2010 Senior Notes Documents; (x) the Existing 2009
Senior Notes Documents; (xi) the Existing 2013 Senior Notes
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Documents; (xii) the Intermediate Holdco Credit Documents; (xiii) the ABL Credit
Documents; (xiv) the Wellbeing Project Financing Documents; (xv) on and after
the execution and delivery thereof, the Permitted Senior Notes Documents; and
(xvi) on and after the execution and delivery thereof, the Permitted Senior
Refinancing Notes Documents.
9.11 Limitation on the Creation of Subsidiaries and Joint Ventures.
(a) Except as otherwise specifically provided in immediately succeeding clause
(b), Holdings will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Initial Borrowing Date any Subsidiary,
provided that the U.S. Borrower and its Wholly-Owned Subsidiaries shall be
permitted to establish or create Wholly-Owned Subsidiaries so long as (A) within
15 Business Days (or such longer period as is acceptable to the Administrative
Agent in any given case) of such establishment, creation or acquisition, as the
case may be, written notice thereof is given to the Administrative Agent
(provided that no such notice shall be required to be given (x) in the case of a
Shell Corporation or (y) in the case of a Foreign Subsidiary entitled to defer
the taking of actions otherwise required by this Section 9.11(a) as a result of
the application of clause (z) of the immediately succeeding proviso), (B)
subject to Sections 8.11(d) and 8.12, the Equity Interests of each such new
Wholly-Owned Subsidiary (if same is an Unrestricted Subsidiary) are pledged
pursuant to, and to the extent required by, the applicable Pledge Agreements
and/or Foreign Security Agreements and, if such Equity Interests constitute
certificated Equity Interests, the certificates representing such Equity
Interests, together with stock or other powers duly executed in blank, are
delivered to the Collateral Agent for the benefit of the Secured Creditors, (C)
to the extent such new Wholly-Owned Subsidiary is required, in accordance with
the applicable provisions of Section 8.11, to become a U.S. Subsidiary
Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers
counterparts of the U.S. Subsidiaries Guaranty, the Intercompany Subordination
Agreement, the Intercreditor Agreement and such Security Documents as would have
been entered into by the respective Subsidiary if same had been a U.S.
Subsidiary Guarantor under the Original Credit Agreement on the Initial
Borrowing Date, and takes all action in connection therewith as would otherwise
have been required to be taken pursuant to Section 5 of the Original Credit
Agreement if such new Wholly-Owned Subsidiary had been a U.S. Credit Party under
the Original Credit Agreement on the Initial Borrowing Date, (D) to the extent
such new Wholly-Owned Subsidiary is organized in a Qualified Non-U.S.
Jurisdiction and is required, in accordance with the applicable provisions of
Section 8.11, to become a Foreign Subsidiary Guarantor, (i) such new
Wholly-Owned Subsidiary executes and delivers counterparts of the Foreign
Subsidiaries Guaranty, the Intercompany Subordination Agreement and such
Security Documents as would have been entered into by the respective Subsidiary
if same had
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been a Foreign Subsidiary Guarantor under the Original Credit Agreement on the
Initial Borrowing Date (determined in accordance with the criteria described in
Sections 5.15, 5.17 and 5.18(b) of the Original Credit Agreement), and takes all
action in connection therewith as would otherwise have been required to be taken
pursuant to Section 5 of the Original Credit Agreement if such new Wholly-Owned
Subsidiary had been a Foreign Credit Party under the Original Credit Agreement
on the Initial Borrowing Date, (E) to the extent such new Wholly-Owned
Subsidiary is organized in a Non-Qualified Jurisdiction and is required, in
accordance with the applicable provisions of Section 8.11, to become a Foreign
Subsidiary Guarantor, (i) such new Wholly-Owned Subsidiary executes and delivers
counterparts of the Foreign Subsidiaries Guaranty and, in each case unless the
Administrative Agent otherwise agrees based on advice of local counsel, the
Intercompany Subordination Agreement and such Security Documents as would have
been entered into by the respective Subsidiary if same had been a Foreign
Subsidiary Guarantor under the Original Credit Agreement organized in such
Non-Qualified Jurisdiction on the Initial Borrowing Date (determined in
accordance with the criteria described in Sections 5.15, 5.17 and 5.18(b) of the
Original Credit Agreement), and takes all action in connection therewith as
would otherwise have been required to be taken pursuant to Section 5 of the
Original Credit Agreement if such new Wholly-Owned Subsidiary had been a Foreign
Credit Party under the Original Credit Agreement organized in such Non-Qualified
Jurisdiction on the Initial Borrowing Date and (F) such new Wholly-Owned
Subsidiary, to the extent requested by any Agent or the Required Lenders, takes
all other actions required pursuant to Section 8.11 (including, without
limitation, to, at its own expense, execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by the Collateral Agent to be necessary or desirable for the
creation and perfection of the Liens on its assets intended to be created
pursuant to the applicable Security Documents); provided that (x) the Credit
Documents required to be executed and delivered pursuant to clauses (C), (D) and
(E) by such newly formed, created or acquired Subsidiary shall not be required
to be so executed and delivered until 45 days after the formation, creation or
acquisition of such Subsidiary, (y) in the case of a Shell Corporation created
or established by the U.S. Borrower or any of its Wholly-Owned Subsidiaries, the
actions described in clauses (B), (C), (D) and (E) and applicable to such Shell
Corporation shall not be required to be taken (so long as same remains a Shell
Corporation) until 60 days after the creation or establishment of such Shell
Corporation and (z) in the case of a newly-formed Wholly-Owned Subsidiary of the
U.S. Borrower organized in (i) a Qualified Non-U.S. Jurisdiction or (ii) a
Non-Qualified Jurisdiction in which an existing Foreign Subsidiary Guarantor is
organized, the actions described in clauses (D), (E) and (F) and applicable to
such Wholly-Owned Subsidiary, shall not be required to be taken by such
Wholly-Owned Subsidiary if the gross book value of its assets (determined as of
the last day of the calendar month then last ended) is less than $10,000,000,
until (and only until) the aggregate gross book value of all Wholly-Owned
Subsidiaries which have not taken the actions described in clauses (D), (E) and
(F) and applicable to such Wholly-Owned Subsidiaries in reliance on this proviso
(determined as of the last day of the calendar month then last ended) exceeds
$20,000,000, at which time all such excluded Wholly-Owned Subsidiaries (and not
just those Wholly-Owned Subsidiaries required to reduce the aggregate gross book
value of such excluded Wholly-Owned Subsidiaries to below $20,000,000) shall
take the actions described in clauses (D), (E) and (F) and applicable to such
Wholly-Owned Subsidiaries.
(b) In addition to Subsidiaries of the U.S. Borrower created pursuant
to preceding clause (a), the U.S. Borrower and its Subsidiaries may establish,
acquire or create, and make Investments in, Non-Wholly Owned Subsidiaries after
the Initial Borrowing Date as a result of Permitted Acquisitions (subject to the
limitations contained in the definition thereof) and Investments expressly
permitted to be made pursuant to Section 9.05, provided that (x) all Equity
Interests of each such Non-Wholly Owned Subsidiary which is an Unrestricted
Subsidiary shall be pledged by any Credit Party which owns same to the extent
required by the Pledge Agreements or relevant Foreign Security Agreements, and
(y) any actions required to be taken pursuant to Section 8.11 in connection with
the establishment of, or Investments in, the respective Subsidiaries are taken
in accordance with the requirements of said Section 8.11.
9.12 Special Restrictions Relating to Principal Property. No Credit
Agreement Party will, nor will permit any of its Subsidiaries to, (i) own or
acquire any Principal Property
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(other than the Principal Properties designated on Schedule XV hereto) or (ii)
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become liable for or suffer to exist any Indebtedness secured by a Lien on any
Principal Property; provided, however, that, notwithstanding the foregoing, (x)
the U.S. Borrower and its Subsidiaries may acquire (by way of third-party
purchase) up to (but not more than) two Principal Properties after the
Restatement Effective Date and, thereafter, own such Principal Properties and
(y) the U.S. Borrower and its Subsidiaries may own additional Principal
Properties which are not Principal Properties on the Restatement Effective Date
(or, if acquired after the Restatement Effective Date, on such date of
acquisition) if (x) the respective Principal Property becomes a Principal
Property after the Restatement Effective Date (or such date of acquisition) as a
result of the making of capital expenditures or other investments in such
Property by the U.S. Borrower or the respective Subsidiary or (y) the respective
Principal Property is constructed by the U.S. Borrower or the respective
Subsidiary.
Section 10. Events of Default. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
10.01 Payments. Either Borrower shall (i) default in the payment when
due of any principal of any Loan or Note, (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any Unreimbursed Payment, any interest on any Loan or Note or any Fees
or (iii) default, and such default shall continue for 10 or more Business Days
after notice to either Borrower by the Administrative Agent or any Lender, in
the payment when due of any other amounts owing hereunder or under any other
Credit Document; or
10.02 Representations, etc. (a) Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document (other than a Foreign Security Document) or in any statement or
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made, (b) any
representation, warranty or statement which is qualified by a materiality
standard of any kind and is made or deemed made by any Foreign Credit Party in
any Foreign Security Document or in any statement or certificate delivered
pursuant to any Foreign Security Document shall prove to be untrue in any
material respect on the date as of which made or deemed made and (c) any
material representation, warranty or statement which is not qualified by a
materiality standard of any kind and is made or deemed made by any Foreign
Credit Party in any Foreign Security Document or in any statement or certificate
delivered pursuant to any Foreign Security Document shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 Covenants. Holdings or any of its Subsidiaries shall (a) default
in the due performance or observance by it of any term, covenant or agreement
contained in Sections 2B.07, 8.01(e)(i), 8.10, 8.11, 8.13, 8.15, 8.18, 8.19,
8.20, 8.21 or 9, or (b) default in the due performance or observance by it of
any term, covenant or agreement contained in this Agreement (other than those
referred to in Sections 10.01, 10.02 or clause (a) of this Section 10.03) and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Administrative Agent or the Required
Lenders; or
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10.04 Default Under Other Agreements. (a) Holdings or any of its
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which Indebtedness was created or (ii) default in
the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity; or
(b) any Indebtedness (other than the Obligations) of Holdings or any of its
Subsidiaries shall be declared to be (or shall become) due and payable, or shall
be required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; provided that it shall not
constitute an Event of Default pursuant to clause (a) or (b) of this Section
10.04 unless the principal amount of any one issue of such Indebtedness, or the
aggregate amount of all such Indebtedness referred to in clauses (a) and (b)
above, equals or exceeds $25,000,000; or
10.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Holdings or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Holdings or any of its
Subsidiaries; or Holdings or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to Holdings or any of
its Subsidiaries; or there is commenced against Holdings or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or Holdings or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or
Holdings or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any Company action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
..67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days which will result in a
Material Adverse Effect, any Plan which is subject to Title IV of ERISA shall
have had or is likely to have a trustee appointed to administer such Plan
pursuant to Section 4042(b)
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of ERISA, any Plan or Multiemployer Plan which is subject to Title IV of ERISA
is, shall have been or is likely to be involuntarily terminated or to be the
subject of termination proceedings under ERISA, any Plan subject to Title IV of
ERISA shall have an Unfunded Current Liability, a contribution required to be
made with respect to a Plan subject to Title IV of ERISA or Multiemployer Plan
or a Foreign Pension Plan has not been made within 60 days of when due, Holdings
or any Subsidiary of Holdings or any ERISA Affiliate has incurred or is likely
to incur any liability to or on account of a Plan subject to Title IV of ERISA
or Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or Holdings
or any Subsidiary of Holdings has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Plans or Foreign
Pension Plans, a "default" within the meaning of Section 4219(c)(5) of ERISA,
shall occur with respect to any Plan or Multiemployer Plan; (b) there shall
result from any such event or events described above in this Section 10.06 the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability resulting from any event described in
clause (a) above; and (c) such lien, security interest or liability,
individually and/or in the aggregate, in the reasonable opinion of the Required
Lenders, has had, or could reasonably be expected to have, a Material Adverse
Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to be
in full force and effect (except in accordance with the terms thereof), or
shall, subject to the Intercreditor Agreement, cease to give the Collateral
Agent for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral), in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; provided that (i) the
occurrence of an Excluded Event shall not give rise to an Event of Default under
this Section 10.07, (ii) the failure to have a perfected and enforceable Lien on
Collateral in favor of the Collateral Agent shall not give rise to an Event of
Default under this Section 10.07, unless the aggregate fair market value of all
Collateral over which the Collateral Agent fails to have a perfected and
enforceable Lien (exclusive of Collateral that is the subject of an Excluded
Event) equals or exceeds $10,000,000 and (iii) in the case of any default
described in clause (b) above in the due performance or observance of any
covenant or agreement contained in any Foreign Security Document that is not
(directly or indirectly) related to the perfection or enforceability of a Lien
on Collateral, such default shall not give rise to an Event of Default until
such default shall continue unremedied for a period of at least 15 days after
notice to the defaulting party by the Administrative Agent, the Collateral Agent
or the Required Lenders; or
10.08 Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force or effect as to the relevant Guarantor, or any Guarantor or
Person acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under the relevant
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Guaranty, or any Guarantor shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to its Guaranty; provided that the occurrence of an Excluded Event shall not
give rise to an Event of Default under this Section 10.08; or
10.09 Judgments. One or more judgments or decrees shall be entered
against Holdings or any of its Subsidiaries involving a liability (to the extent
not paid or covered by a reputable and solvent insurance company (with any
portion of any judgment or decree not so covered to be included in any
determination hereunder)) equal to or in excess of $25,000,000 for all such
judgments and decrees and all such judgments or decrees shall either be final
and non-appealable or shall not have been vacated, discharged or stayed or
bonded pending appeal for any period of 60 consecutive days; provided, however,
that the rendering of any such judgment(s) or decree(s) by courts outside of the
United States and Bermuda shall not be an Event of Default under this Section
10.09 unless (i) Holdings and its Subsidiaries which are subject to the
judgment(s) or decree(s), as of the date of the issuance of such judgment(s) or
decree(s) (or any later date while such judgment(s) or decree(s) are still in
effect) have at least $25,000,000 in net assets (determined on a book basis
without regard to any write-down or write-off of such assets as a result of such
judgment(s) or decree(s)) located in the jurisdictions (i.e., the relevant
country or countries or any larger jurisdiction of the respective court(s)) of
the courts rendering such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive days) or (ii) an order or orders
enforcing such judgment(s) or decree(s) (which is (or are) final and
non-appealable or has (or have) not been vacated, discharged, stayed or bonded
pending appeal for any period of 60 consecutive days) is entered by a court or
courts of competent jurisdiction in a jurisdiction or jurisdictions where
Holdings and/or its Subsidiaries subject to the order, as of the date of the
entry of such order of enforcement (or any later date while any such order is
still in effect), have at least $25,000,000 in net assets located in such
jurisdiction or jurisdictions (determined on a book basis without regard to any
write-down or write-off of such assets as a result of such judgment(s) or
decree(s)); or
10.10 Ownership. A Change of Control shall have occurred; or
10.11 Denial of Liability. (a) Any Credit Agreement Party shall deny
its obligations under this Agreement, any Note or any other Credit Document, (b)
any law, rule or regulation shall purport to render invalid, or preclude
enforcement of, any provision of this Agreement or any other Credit Document or
impair performance of any Foreign Credit Party's obligations hereunder or under
any other Credit Document or (c) any dominant authority asserting or exercising
de jure or de facto governmental or police powers shall, by moratorium laws or
otherwise, cancel, suspend or defer the obligation of any Foreign Credit Party
to pay any amount required to be paid hereunder or under any other Credit
Document; provided that the occurrence of an Excluded Event shall not give rise
to an Event of Default under this Section 10.11; or
10.12 Governmental Action. Any governmental authority shall have
condemned, nationalized, seized, or otherwise expropriated all or any
substantial part of the property, shares of capital stock or other assets of any
Foreign Credit Party or any of its Subsidiaries, or shall have assumed custody
or control of such property or other assets or of the
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business or operations of any Foreign Credit Party or any of its Subsidiaries,
or shall have taken any action for the dissolution or disestablishment of any
Foreign Credit Party or any of its Subsidiaries or any action that would prevent
any Foreign Credit Party, any of its Subsidiaries or any of their respective
officers from carrying on the business of such Foreign Credit Party or such
Subsidiary or a substantial part thereof; provided that the occurrence of an
Excluded Event shall not give rise to an Event of Default under this Section
10.12; or
10.13 Special Defaults Relating to Bermuda Entities. (i) The Bermuda
Borrower shall fail to maintain its corporate existence in full force and effect
or (ii) any Foreign Credit Party organized under the laws of Bermuda shall (x)
fail to take any of the actions described in Section 8.05 (determined without
regard to the second proviso appearing in said Section) or (y) take any action
described in the last sentence of Section 8.16 (determined without regard to the
proviso appearing at the end of said sentence), and such failure to take or the
taking of such action, as the case may be, described in this clause (ii) shall
continue for a period of at least 30 days after notice to such Foreign Credit
Party by the Administrative Agent or the Required Lenders;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to Holdings or the U.S.
Borrower, take any or all of the following actions, without prejudice to the
rights of any Agent or any Lender to enforce its claims against any Credit Party
(provided that if an Event of Default specified in Section 10.05 shall occur
with respect to either Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately and any Fees shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings and Unreimbursed Payments) to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrowers; (iii) enforce, as Collateral Agent (or direct the Collateral Agent to
enforce), subject to the Intercreditor Agreement, any or all of the Liens and
security interests created pursuant to the Security Documents; (iv) terminate
any Letter of Credit or Bank Guaranty which may be terminated in accordance with
its terms; (v) direct the Bermuda Borrower to pay (and the Bermuda Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to either Borrower, it will pay)
to the Administrative Agent at the Payment Office such additional amount of cash
(in the respective currencies in which such Letters of Credit or Bank Guaranties
are denominated), to be held as security by the Administrative Agent, as is
equal to the sum of (x) the aggregate Stated Amount of all Bermuda Borrower
Letters of Credit issued for the account of the Bermuda Borrower and then
outstanding and (y) the aggregate Face Amount of all Bank Guaranties issued for
the account of the Bermuda Borrower and then outstanding; (vi) direct the U.S.
Borrower to pay (and the U.S. Borrower agrees that upon receipt of such notice,
or upon the occurrence of an Event of Default specified in Section 10.05 with
respect to either Borrower, it will pay) to the Administrative Agent at the
Payment Office such additional amount of cash (in the respective currencies in
which such Letters of Credit or Bank Guaranties are denominated), to be held as
security by the Administrative Agent, as is equal to the sum of (x) the
aggregate Stated Amount
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of all Letters of Credit then outstanding and (y) the aggregate Face Amount of
all Bank Guaranties issued for the account of the U.S. Borrower and then
outstanding; and (vii) apply any cash collateral held by the Administrative
Agent as provided in Section 4.02 to the repayment of the Obligations.
Section 11. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"ABL Borrower" shall mean the "Borrower" as defined in the ABL Credit
Agreement.
"ABL Collateral Agent" shall mean the "Collateral Agent" as defined in
the ABL Credit Agreement.
"ABL Commitment" shall mean the commitment under the ABL Credit
Agreement.
"ABL Credit Agreement" shall mean the Credit Agreement, dated as of
April 12, 2006, among Holdings, Intermediate Holdco, the U.S. Borrower, as ABL
Borrower, Deutsche Bank Trust Company Americas, as Administrative Agent, Banc of
America Securities LLC, as syndication agent, The Bank of Nova Scotia, as
documentation agent, Deutsche Bank Securities Inc. and Banc of America
Securities LLC, as joint book runners, and Deutsche Bank Securities Inc., as
sole lead arranger, as the same may be amended, restated, modified,
supplemented, renewed, refunded, replaced or refinanced from time to time in one
or more agreements or indentures (in each case with the same or new lenders,
institutional investors or agents), including any agreement or indenture
extending the maturity thereof or otherwise restructuring all or any portion of
the Indebtedness thereunder or increasing the amount loaned or issued thereunder
or altering the maturity thereof (so long as, in the case of any replacement or
refinancing, all commitments under the agreements or indentures so replaced or
refinanced shall have been terminated, all unpaid amounts thereunder (other than
indemnities) shall have been paid in full and all parties to any replacement or
refinancing agreements or indentures, or a trustee or agent on their behalf,
shall have become party to the Intercreditor Agreement as of the applicable date
of replacement or refinancing, as the case may be).
"ABL Credit Documents" shall mean the ABL Credit Agreement and the
related guaranties, pledge agreements, security agreements, mortgages, notes and
other agreements and instruments entered into in connection with the ABL Credit
Agreement, in each case as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
"ABL Credit Party" shall mean a "Credit Party" as defined in the ABL
Credit Agreement.
"ABL Lender" shall mean a "Lender" as defined in the ABL Credit
Agreement.
"ABL Loans" shall mean the "Loans" as defined in the ABL Credit
Agreement.
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"ABL Priority Collateral" means, collectively, all "ABL Priority
Collateral" as defined in the Intercreditor Agreement.
"ABL Secured Creditors" shall mean the "Secured Creditors" as defined
the ABL Security Documents.
"ABL Security Agreement" shall mean the "Security Agreement" as
defined in the ABL Credit Agreement.
"ABL Security Documents" shall mean the "Security Documents" as
defined in the ABL Credit Agreement.
"Account Party" shall mean, with respect to Letters of Credit or Bank
Guaranties, the U.S. Borrower or the Bermuda Borrower, as specified in the
respective Letter of Credit Request (or, in the case of Existing Letters of
Credit, as specified pursuant to the Original Credit Agreement) or Bank Guaranty
Request (or, in the case of Existing Bank Guaranties, as specified pursuant to
the Original Credit Agreement).
"Acquired Entity or Business" shall mean either (x) the assets
constituting a business, division or product line of any Person not already a
Subsidiary of Holdings or (y) 100% of the Equity Interests of any such Person,
which Person shall, as a result of such acquisition of Equity Interests, become
a Wholly-Owned Subsidiary of Holdings (or shall be merged with and into the U.S.
Borrower, the Bermuda Borrower or a another Wholly-Owned Subsidiary of the U.S.
Borrower, with the U.S. Borrower, the Bermuda Borrower or such other
Wholly-Owned Subsidiary being the surviving Person).
"Additional Tranche C Term Loans" shall have the meaning provided in
Section 1.01(b).
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to be
granted) (and continue to be in effect at the time of determination) pursuant to
Sections 8.11, 8.12 and/or 9.11.
"Additional Mortgage" shall have the meaning provided in Section
8.11(a).
"Additional Mortgaged Property" shall have the meaning provided in
Section 8.11(a).
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into from
time to time pursuant to Sections 8.11, 8.12, 8.15, 9.11 and/or 13.19, as each
such document may be modified, supplemented or amended from time to time in
accordance with the terms hereof and thereof.
"Adjusted Consolidated Net Income" shall mean, for any period,
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest expense)
and net non-cash losses which were included in arriving at Consolidated
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Net Income for such period, less the amount of all net non-cash gains which were
included in arriving at Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" shall mean, at any time,
Consolidated Current Assets at such time (but excluding therefrom all cash and
Cash Equivalents) less Consolidated Current Liabilities at such time.
"Adjusted Excess Cash Flow" shall mean, for any period, the remainder
of (i) Excess Cash Flow for such period minus (ii) the aggregate amount of
principal repayments of Loans to the extent (and only to the extent) that such
repayments were made as a voluntary prepayment pursuant to, Section 4.01 hereof.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another Person if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors (or
equivalent governing body) of such Person or (ii) to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise; provided, however,
that neither any Agent nor any Lender (nor any Affiliate thereof) shall be
considered an Affiliate of Holdings or any Subsidiary thereof.
"Affiliated Group" shall have the meaning provided in Section 9.06(v).
"After-Acquired Foreign Personal Property" shall have the meaning
provided in Section 8.11(k).
"Agent" shall mean the Administrative Agent, the Syndication Agent and
each Co-Documentation Agent and shall include any successor to any such Person
appointed pursuant to Section 12.10.
"Aggregate CL Exposure" shall mean, at any time, the sum of (i) the
aggregate amount of all Letter of Credit Outstandings at such time plus (ii) the
aggregate amount of all Bank Guaranty Outstandings at such time (for this
purpose, giving effect to the provisos to the definitions of Stated Amount and
Face Amount in determining the Letter of Credit Outstandings and Bank Guarantee
Outstandings at such time).
"Agreement" shall mean this Credit Agreement, as amended and restated
and as the same may be further modified, supplemented, amended, restated,
extended, renewed, refinanced and/or replaced from time to time.
"Alternative Currency" shall mean Sterling and Euros.
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"Applicable Currency" shall mean (i) with respect to any Loan, Dollars
and (ii) with respect to any Letter of Credit or Bank Guaranty, Dollars or the
Alternative Currency in which such Letter of Credit or Bank Guaranty is
denominated.
"Applicable Increased Term Loan Rate" shall mean, at any time, with
respect to any newly-created Tranche of Incremental Term Loans, the rate per
annum (expressed as a percentage) applicable to Tranche B Term Loans, Tranche C
Term Loans and each other then existing Tranche of Incremental Term Loans after
giving effect to the provisos in subclause (II) of clause (vii) of Section
1.15(a) and shall be conclusive and binding on all Lenders absent manifest
error.
"Applicable Margin" shall mean initially, commencing on the
Restatement Effective Date, a percentage per annum equal to: (i) in the case of
Tranche B Term Loans and Tranche C Term Loans maintained as (A) Base Rate Loans,
0.75% and (B) Eurodollar Loans, 1.75% (or, on and after the date of the most
recent incurrence of any Tranche of Incremental Term Loans bearing interest at
the Applicable Increased Term Loan Rate, the Applicable Increased Term Loan Rate
for such Tranche of Incremental Term Loans); and (ii) in the case of any Type of
Incremental Term Loan of a given Tranche, that percentage per annum set forth
in, or calculated in accordance with, Section 1.15 and the relevant Incremental
Term Loan Commitment Agreement (or in the case of Incremental Term Loans of a
given Tranche, on and after the date of the most recent incurrence of any
Tranche of Incremental Term Loans bearing interest at the Applicable Increased
Term Loan Rate, the Applicable Increased Term Loan Rate for such Tranche of
Incremental Term Loans); provided, that from and after each date of delivery, on
or after the Restatement Effective Date, of any certificate delivered in
accordance with Section 8.01(d), all Applicable Margins for Tranche B Term Loans
and Tranche C Term Loans shall be increased by 0.25% unless the respective
certificate delivered in accordance with Section 8.01(d) sets forth a
calculation of the Senior Secured Leverage Ratio as at the last day of the
respective Fiscal Quarter or Fiscal Year for which the respective certificate is
being delivered which is equal to or less than 3.25:1.00; provided, further,
that if any certificate required to be delivered pursuant to Section 8.01(d) is
not delivered by the date required pursuant to said Section 8.01(d), the
increased Applicable Margins (i.e., 0.25%) shall apply from the date the
respective certificate was required to be delivered pursuant to Section 8.01(d)
to and including the date on which a certificate is thereafter subsequently
delivered to the Administrative Agent in accordance with Section 8.01(d) (except
for the late delivery thereof) (which shall then constitute a new Start Date (if
applicable)). Notwithstanding the foregoing, the relevant Applicable Margins
shall be subject to increases pursuant to, and to the extent expressly provided
in, Section 1.15.
"Applicable Prepayment Percentage" shall mean, at any time, (i) for
purposes of Section 4.02(f) and the definitions of "Retained Excess Cash Flow
Amount", 50%; provided that, so long as no Default or Event of Default is then
in existence, if the Total Leverage Ratio is less than 3.50:1.00 as at the last
day of the most recently ended Fiscal Year of the U.S. Borrower (as set forth in
an officer's certificate delivered pursuant to Section 8.01(d) for the Fiscal
Year of the U.S. Borrower then last ended), the Applicable Prepayment Percentage
shall instead be 0%.
"Asset Sale" shall mean any sale, transfer or other disposition by
Holdings or any of its Subsidiaries to any Person other than the U.S. Borrower
or any Wholly-Owned Subsidiary
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of the U.S. Borrower of any asset or Property (including, without limitation,
any capital stock or other securities of, or other Equity Interests in, another
Person, but excluding the sale by Holdings of its own capital stock) of Holdings
or such Subsidiary other than (i) sales, transfers or other dispositions of
inventory made in the ordinary course of business, (ii) other sales and
dispositions that generate Net Sale Proceeds of less than $15,000,000 in the
aggregate in any Fiscal Year of Holdings or (iii) sales or liquidations of Cash
Equivalents, it being understood and agreed that the grant of a Lien by Holdings
or any of its Subsidiaries in favor of another Person shall not in and of itself
constitute an "Asset Sale" for purposes of this definition.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests, Bank
Guaranty Requests and similar notices, any person or persons that has or have
been authorized by the board of directors of either Borrower to deliver such
notices pursuant to this Agreement and that has or have appropriate signature
cards on file with the Administrative Agent, the respective Issuing Lender or
the respective Bank Guaranty Issuer, (ii) delivering financial information and
officer's certificates pursuant to this Agreement, the chief financial officer,
any treasurer or other financial officer of Holdings or the U.S. Borrower and
(iii) any other matter in connection with this Agreement or any other Credit
Document, any officer (or a person or persons so designated by any two officers)
of Holdings or the U.S. Borrower.
"Bank Guaranty" shall have the meaning provided in Section 2B.01(a).
"Bank Guaranty Issuer" shall mean (i) if and to the extent it agrees
to act as such, any Agent (and any of such Agent's affiliates and/or branches),
(ii) any ABL Lender (and any of such ABL Lender's affiliates and/or branches) or
any CL Lender (and any of such CL Lender's affiliates and/or branches) which at
the request of the U.S. Borrower or the Bermuda Borrower and with the consent of
the Administrative Agent agrees, in such ABL Lender's or CL Lender's (or their
respective affiliate's or branch's) sole discretion, to become a Bank Guaranty
Issuer for the purpose of issuing Bank Guaranties pursuant to Section 2B and
(iii) with respect to the Existing Bank Guaranties, the Lender or Original
Lender (and any of such Lender's or Original Lender's affiliates and/or
branches) designated as the issuer thereof on Part B of Schedule XI shall be the
Bank Guaranty Issuer thereof.
"Bank Guaranty Outstandings" shall mean, at any time, the sum of (i)
the aggregate Face Amount of all outstanding Bank Guaranties which have not
terminated at such time plus (ii) the aggregate amount of all Unreimbursed
Payments in respect of all Bank Guaranties at such time.
"Bank Guaranty Payment" shall have the meaning provided in Section
2B.05(b).
"Bank Guaranty Request" shall have the meaning provided in Section
2B.03(a).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
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"BAS" shall mean Banc of America Securities LLC, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate at such time and (y) the Prime
Lending Rate at such time.
"Base Rate Loan" shall mean each Loan which is designated or deemed
designated as a Base Rate Loan by the respective Borrower at the time of the
incurrence thereof or conversion thereto.
"Bermuda Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Bermuda Borrower Bank Guaranty" shall mean each Bank Guaranty (which
may be denominated in Dollars or an Alternative Currency) issued for the account
of the Bermuda Borrower pursuant to Section 2B.01 and designated as such by the
Bermuda Borrower in the respective Bank Guaranty Request (or, in the case of an
Existing Bank Guaranty, to the extent provided in Section 2B.01(d)).
"Bermuda Borrower Incremental Term Loans" shall mean Incremental Term
Loans incurred by the Bermuda Borrower.
"Bermuda Borrower Letter of Credit" shall mean each Letter of Credit
(which must be denominated in Dollars or an Alternative Currency) issued for the
account of the Bermuda Borrower pursuant to Section 2A.01.
"Bermuda Borrower Term Loans" shall mean and include all Tranche C
Term Loans and all Bermuda Borrower Incremental Term Loans.
"Bermuda Borrower's Guaranty" shall mean the guaranty of the Bermuda
Borrower pursuant to Section 14.
"Bermuda Partnership" shall mean ββββ Foreign Holdings, Ltd., a
limited liability company organized under the laws of Bermuda.
"Bermuda Partnership Partner #1" shall mean ββββ Fresh Fruit Company,
Inc., a corporation organized under the laws of Nevada and a Wholly-Owned
Subsidiary of the U.S. Borrower, and any successor thereto by way of a merger or
consolidation permitted by Section 9.01(d).
"Bermuda Partnership Partner #2" shall mean ββββ Ocean Cargo Express,
Inc., a corporation organized under the laws of Nevada and a Wholly-Owned
Subsidiary of the U.S. Borrower, and any successor thereto by way of a merger or
consolidation permitted by Section 9.01(d).
"Bermuda Partnership Partners" shall mean and include Bermuda
Partnership Partner #1 and Bermuda Partnership Partner #2.
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"B/G Participant" shall have the meaning provided in Section 2B.04(a).
"B/G Participation" shall have the meaning provided in Section
2B.04(a).
"B/G Supportable Indebtedness" shall mean (i) obligations of the U.S.
Borrower or its Wholly-Owned Subsidiaries (or, in the case of any Existing Bank
Guaranty, any Foreign Subsidiary of the U.S. Borrower) incurred in the ordinary
course of business owing to taxing authorities, custom authorities or with
respect to import and/or export licenses and (ii) such other obligations of the
U.S. Borrower or its Wholly-Owned Subsidiaries as are reasonably acceptable to
the Administrative Agent and the respective Bank Guaranty Issuer and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Borrowers" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan pursuant to a
single Tranche by the Bermuda Borrower or by the U.S. Borrower from all the
Lenders having Commitments with respect to such Tranche on a given date (or
resulting from a conversion or conversions on such date), having in the case of
Eurodollar Loans the same Interest Period; provided (x) that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans, (y) the term "Borrowing" shall include the
consolidated "borrowing" of Tranche C Term Loans pursuant to the simultaneous
conversion of Original Tranche B Term Loans and the incurrence of Additional
Tranche C Term Loans on the Restatement Effective Date on the terms provided in
Section 1.01(b), and (z) any Incremental Term Loans incurred pursuant to Section
1.01(c) shall be considered part of the related Borrowing of the then
outstanding Tranche of Term Loans (if any) to which such Incremental Term Loans
are added pursuant to Section 1.15(c).
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York (or, with respect to an Issuing Lender not located in
the City of New York, the location of such Issuing Lender) a legal holiday or a
day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in
connection with, determinations of the LIBOR Rate and Interest Periods to be
determined in accordance with clause (ii) of the definition thereof contained
herein, any day which is a Business Day described in clause (i) and which is
also a day for trading by and between banks in the London interbank market and
which shall not be a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close in London or
New York City.
"Business Segment" shall mean a reportable segment as discussed in
Statement of Financial Accounting Standards No. 131 "Disclosure about Segments
of an Enterprise and Related Information."
"Calculation Period" shall mean, with respect to any Permitted
Acquisition, any Significant Asset Sale or any other event expressly required to
be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the
Test Period most recently ended prior to the
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date of such Permitted Acquisition, Significant Asset Sale or other event for
which financial statements pursuant to Sections 8.01(a) or (b) are then
available.
"California Disposition" shall have the meaning provided in Section
9.02(xx).
"Canadian Security Agreement" shall have the meaning provided in
Section 12.14(a).
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with U.S. GAAP during such period, including, without duplication,
all such expenditures with respect to fixed or capital assets (including,
without limitation, expenditures for maintenance and repairs which should be
capitalized in accordance with U.S. GAAP) and the amount of all Capitalized
Lease Obligations incurred by such Person during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
Property by that Person as lessee which, in conformity with U.S. GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" of any Person shall mean all
obligations under Capital Leases of such Person, in each case taken at the
amount thereof accounted for as indebtedness in accordance with U.S. GAAP.
"Cash Equivalents" means (i) Dollars, Euros, Sterling and, in
the case of any of Foreign Subsidiaries of the U.S. Borrower, such local
currencies held by them from time to time in the ordinary course of their
businesses, (ii) securities issued or directly fully guaranteed or insured by
the governments of the United States, the United Kingdom, Sweden, Switzerland,
Japan, Canada and members of the European Union or any agency or instrumentality
thereof (provided that the full faith and credit of the respective such
government is pledged in support thereof) having maturities of not more than six
months from the date of acquisition, (iii) securities issued by any state of the
United States or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or βββββ'β, (iv) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank or
commercial bank of a foreign country recognized by the United States, (x) in the
case of a domestic commercial bank, having capital and surplus in excess of
$500,000,000 and outstanding debt which is rated "A" (or similar equivalent
thereof) or higher by at least one nationally recognized statistical rating
organization (as defined under Rule 436 under the Securities Act) and (y) in the
case of a foreign commercial bank, having capital and surplus in excess of
$250,000,000 (or the foreign currency equivalent thereof), (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iv) above entered into with any
financial institution meeting the qualifications specified in clause (iv) above,
(vi) commercial paper having a rating of at least A-1 from S&P or at least P-1
from βββββ'β and in each case maturing within six months after the date of
acquisition and (vii) investments in money market funds which invest
substantially all
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their assets in securities of the types described in clauses (i) through (vi)
above. Furthermore, with respect to Foreign Subsidiaries of the U.S. Borrower
that are not organized in one or more Qualified Jurisdictions, Cash Equivalents
shall include bank deposits (and investments pursuant to operating account
agreements) maintained with various local banks in the ordinary course of
business consistent with past practice of the U.S. Borrower's Foreign
Subsidiaries.
"Change of Control" shall mean (i) Holdings shall at any time cease to
own directly 100% of the Equity Interests of Intermediate Holdco, (ii)
Intermediate Holdco shall at any time cease to own directly 100% of the Equity
Interests of (x) the U.S. Borrower and (y) Corporate Holdco, (iii) the U.S.
Borrower shall at any time cease to own directly or indirectly 100% of the
Equity Interests of the Bermuda Borrower, (iv) the Permitted Holders shall at
any time and for any reason fail to own at least 75% of both the economic and
voting interest in Holdings' capital stock, (v) the Board of Directors of
Holdings shall cease to consist of a majority of Continuing Directors, or (vi) a
"change of control" or similar event shall occur as provided in any ABL Credit
Document, Existing Senior Notes Document, any Qualified Preferred Stock (or
certificate of designation governing the same), any Wellbeing Project Financing
Document or, on and after the execution and delivery thereof, any Permitted
Senior Notes Documents or any Permitted Refinancing Senior Notes Document.
"CL Credit Event" shall mean and include the issuance of a Letter of
Credit and/or a Bank Guaranty.
"CL Facility Fee" shall have the meaning provided in Section 3.01(a).
"CL Interest Payment Date" shall mean (i) in the case of the first CL
Interest Payment Date, the last day of the third Interest Period applicable to
Credit-Linked Deposits occurring after the Restatement Effective Date and (ii)
the last day of every third Interest Period applicable to Credit-Linked Deposits
to occur thereafter.
"CL Lender" shall mean each Lender having a Credit-Linked Commitment
(without giving effect to any termination of the Total Credit-Linked Commitment
if any Letter of Credit Outstandings or any Bank Guaranty Obligations remain
outstanding).
"CL Maturity Date" shall mean April 12, 2013.
"CL Percentage" of any CL Lender at any time shall be that percentage
which is equal to a fraction (expressed as a percentage) the numerator of which
is the Credit-Linked Commitment of such CL Lender at such time and the
denominator of which is the Total Credit-Linked Commitment at such time,
provided that if any such determination is to be made after the Total
Credit-Linked Commitment (and the related Credit-Linked Commitments of the CL
Lenders) has (or have) terminated, the determination of such percentages shall
be made immediately before giving effect to such termination (but giving effect
to any subsequent assignments in accordance with the terms of this Agreement).
"CL Tranche" shall mean a collective reference to the Credit-Linked
Commitments of the various CL Lenders, the Credit-Linked Deposits of the various
CL Lenders and their L/C Participations in Letters of Credit and B/G
Participations in Bank Guaranties hereunder.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Original
Effective Date and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Co-Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to a
Co-Documentation Agent appointed pursuant to Section 12.10.
"Collateral" shall mean all property (whether real or personal,
movable or immovable) with respect to which any security interests have been
granted (or purported to be granted) pursuant to any Security Document
(including any Additional Security Document), including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties and all cash and Cash Equivalents delivered as collateral pursuant to
Section 4.02 or 10 or any Credit Document and all Additional Collateral, if any.
It is understood and agreed that the term "Collateral" shall not include any
Property which constitutes Excluded Collateral, for so long as same constitutes
Excluded Collateral.
"Collateral Agent" shall mean DBAG, acting as collateral agent for the
Secured Creditors.
"Commitment" shall mean any of the commitments of any Lender, i.e.,
whether the Tranche B Term Loan Commitment, the Tranche C Term Loan Commitment,
the Credit-Linked Commitment or the Incremental Term Loan Commitment of any
Tranche of such Lender.
"Commodity Agreements" shall mean commodity agreements, hedging
agreements and other similar agreements or arrangements designed to protect
against price fluctuations of commodities (e.g., fuel) used in the business of
the U.S. Borrower and its Subsidiaries.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consenting Tranche C Term Loan Lender" shall mean each Lender under,
and as defined in, the Original Credit Agreement with an outstanding Original
Tranche B Term Loan on the Restatement Effective Date (immediately prior to
giving effect thereto) that has executed and delivered a counterpart of this
Agreement to the Administrative Agent on or prior to the Restatement Effective
Date and has an amount set forth opposite its name on Schedule I hereto under
the heading "Converted Tranche C Term Loans".
"Consolidated Current Assets" shall mean, at any time, the current
assets of the U.S. Borrower and its Consolidated Subsidiaries at such time
determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of the U.S. Borrower and its Consolidated Subsidiaries
determined on a consolidated basis, but excluding the current portion of, and
accrued but unpaid interest on, any Indebtedness under this Agreement and any
other long-term Indebtedness which would otherwise be included therein.
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"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income (without giving effect to (x) any extraordinary gains or losses and (y)
any gains or losses from sales of assets other than inventory sold in the
ordinary course of business) before (i) total interest expense (inclusive of
amortization of deferred financing fees and any other original issue discount)
of the U.S. Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period, and (ii) provision for taxes based on income
and foreign withholding taxes, in each case to the extent deducted in
determining Consolidated Net Income for such period.
"Consolidated EBITDA" shall mean for any period, Consolidated EBIT,
adjusted by (x) adding thereto (in each case to the extent deducted in
determining Consolidated Net Income for such period and not already added back
in determining Consolidated EBIT) the amount of (i) all depreciation and
amortization expense that were deducted in determining Consolidated EBIT for
such period, (ii) any other non-cash charges incurred in such period, to the
extent that same were deducted in arriving at Consolidated EBIT for such period,
and (iii) the amount of all fees and expenses incurred in connection with the
Transaction for such period, to the extent same were deducted in arriving at
Consolidated EBIT for such period and (y) subtracting therefrom, (i) to the
extent included in arriving at Consolidated EBIT for such period, the amount of
non-cash gains during such period, (ii) the aggregate amount of all cash
payments made during such period in connection with non-cash charges incurred in
a prior period, to the extent such non-cash charges were added back pursuant to
clause (x)(ii) above in a prior period and (iii) the amount of all "interest
expense" paid during such period under the Specified Existing Ship Leases
(calculated on a basis consistent with the past practices of the U.S. Borrower
under the Original Credit Agreement, as if FASB Interpretation No. 46
("Consolidation of Variable Interest Entities") had not been implemented).
"Consolidated Net Debt" shall mean, at any time, the remainder of (I)
the sum of (without duplication) (i) all Indebtedness of the U.S. Borrower and
its Consolidated Subsidiaries (on a consolidated basis) as would be required to
be reflected as debt or Capital Leases on the liability side of a consolidated
balance sheet of the U.S. Borrower and its Consolidated Subsidiaries in
accordance with U.S. GAAP, (ii) all Indebtedness of the U.S. Borrower and its
Consolidated Subsidiaries of the type described in clauses (ii) and (vii) of the
definition of Indebtedness and (iii) all Contingent Obligations of the U.S.
Borrower and its Consolidated Subsidiaries in respect of Indebtedness of any
third Person of the type referred to in preceding clauses (i) and (ii) minus
(II) the aggregate amount of Unrestricted Cash Equivalents of Holdings and its
Subsidiaries at such time to the extent same would be reflected on a
consolidated balance sheet of the U.S. Borrower if same were prepared at such
time; provided that (v) Indebtedness of the U.S. Borrower and its Subsidiaries
representing operating lease obligations under the Specified Existing Ship
Leases that became Indebtedness after the Initial Borrowing Date as a result of
the implementation of FASB Interpretation No. 46 ("Consolidation of Variable
Interest Entities") as in effect on the Initial Borrowing Date shall not be
included in any determination of "Consolidated Net Debt", (w) the amount
available to be drawn under all letters of credit, bankers' acceptances, bank
guaranties and similar obligations issued for the account of the U.S. Borrower
or any of its Consolidated Subsidiaries (but excluding, for avoidance of doubt,
all unpaid drawings or other monetary obligations owing in respect of such
letters of credit, bankers' acceptances, bank guaranties and similar
obligations) shall not be included in any determination of "Consolidated Net
Debt", (x) for purposes of this definition, the amount of Indebtedness in
respect of the Interest Rate Protection Agreements, Other Hedging Agreements
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and Commodities Agreements shall be at any time the unrealized net loss
position, if any, of the U.S. Borrower and/or its Consolidated Subsidiaries
thereunder on a marked-to-market basis determined no more than one month prior
to such time, (y) obligations arising under Synthetic Leases shall be included
in determining Consolidated Net Debt and (z) any Preferred Equity of the U.S.
Borrower or any of its Consolidated Subsidiaries shall be treated as
Indebtedness, with an amount equal to the greater of the liquidation preference
or the maximum fixed repurchase price of any such outstanding Preferred Equity
deemed to be a component of Consolidated Net Debt.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the U.S. Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period (taken as a single accounting period) in
accordance with U.S. GAAP, provided that the following items shall be excluded
in computing Consolidated Net Income (without duplication): (i) except for
determinations expressly required to be made on a Pro Forma Basis, the net
income (or loss) of any Person accrued prior to the date it becomes a
Consolidated Subsidiary or all or substantially all of the property or assets of
such Person are acquired by a Consolidated Subsidiary and (ii) the net income of
any Consolidated Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Subsidiary of such net
income is not at the time permitted by the operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary.
"Consolidated Senior Secured Net Debt" shall mean, at any time (x) the
amount of Consolidated Net Debt at such time less (y) all amounts reflected
therein attributable to Indebtedness which is totally unsecured.
"Consolidated Subsidiary" shall mean, with respect to any Person, at
any date, any other Person the Equity Interests of which are owned by such
Person and whose financial results are consolidated in the financial statements
of such Person in accordance with U.S. GAAP (and consistent with the
consolidation practices of the U.S. Borrower as in effect on the Original
Effective Date), if such statements were prepared as of such date.
"Contemplated Asset Sale" shall mean any sale of assets by the U.S.
Borrower and/or one or more of its Subsidiaries (including Real Property and
Equity Interests held by such Persons but excluding Equity Interests in the
Bermuda Borrower and the Bermuda Partnership and any Person which owns, directly
or indirectly, Equity Interests therein); provided, however, that any such
assets so sold shall be comprised of "non-core" assets which (i) are not
material to the operations of the U.S. Borrower and its Subsidiaries and (ii)
generated an insignificant portion of Consolidated EBITDA during the twelve
month period prior to the date of such sale.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of any other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
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or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the lesser of (x) the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount
of such Contingent Obligation.
"Continuing Directors" shall mean the directors of Holdings on the
Restatement Borrowing Date and each other director if such director's election
to, or nomination for the election to, the Board of Directors of Holdings is
recommended or approved by a majority of then Continuing Directors.
"Converted Tranche C Term Loans" shall have the meaning provided in
Section 1.01(b).
"Corporate Holdco" shall mean ββββ Holding Company, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of Intermediate Holdco.
"Credit Agreement Party" shall mean Holdings, Intermediate Holdco and
each Borrower.
"Credit Agreement Party Guaranty" shall mean the guaranty of each
Credit Agreement Party pursuant to Section 14.
"Credit Documents" shall mean this Agreement, the Notes, each
Subsidiaries Guaranty, the Intercompany Subordination Agreement, each Special
Colombian Put Note, each Special Colombian Put Note Agreement, each Security
Document, each Incremental Term Loan Commitment Agreement, the U.S. Subsidiaries
Guaranty, the Foreign Subsidiaries Guaranty Acknowledgement, the Intercompany
Subordination Agreement Acknowledgement, each Foreign Security Document
Acknowledgement and/or Amendment, the Intercreditor Agreement and any other
guarantees or security documents executed and delivered for the benefit of the
Lenders in accordance with the requirements of this Agreement and any other
guaranties, pledge agreements or security documents executed and delivered in
accordance with the requirements of Sections 8.11, 8.12 and/or 9.10.
"Credit Event" shall mean the making of a Loan, the issuance of a
Letter of Credit, the issuance of a Bank Guaranty or the making of any
Credit-Linked Deposit.
"Credit-Linked Commitment" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I directly below the column
entitled "Credit-Linked
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Commitment," as the same may be (x) reduced from time to time or terminated
pursuant to Sections 3.02, 3.03 and/or 10, as applicable, or (y) adjusted from
time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 13.04(b).
"Credit-Linked Deposit" shall mean, as to each CL Lender, the cash
deposit made by such CL Lender pursuant to Section 2C.01(a) or Section 1.13 or
13.04(b), as the case may be, as such deposit may be (x) reduced from time to
time pursuant to the terms of this Agreement and (y) reduced or increased from
time to time pursuant to assignments to or by such CL Lender pursuant to Section
1.13 or 13.04(b). The initial amount of each CL Lender's Credit-Linked Deposit
shall be equal to the amount of its Credit-Linked Commitment on the Restatement
Effective Date or on the date that such Person becomes a CL Lender pursuant to
Section 1.13 or 13.04(b).
"Credit-Linked Deposit Account" shall mean the accounts of, and
established by, the Deposit Bank under its sole and exclusive control and
maintained at the office of the Deposit Bank, and designated as the "ββββ Foods
Credit-Linked Deposit Account" that shall be used solely for the purposes set
forth in Sections 1.04, 2A.04(c) and 2B.04(c).
"Credit-Linked Deposit Cost Amount" shall mean, at any time, a
percentage per annum equal to 0.13%.
"Credit Party" shall mean each U.S. Credit Party and each Foreign
Credit Party.
"DBAG" shall mean Deutsche Bank AG New York Branch, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"DBSI" shall mean Deutsche Bank Securities Inc., in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Default" shall mean any event, act or condition, which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Deposit Bank" shall mean DBAG and shall include any successor thereto
appointed pursuant to Section 12.10.
"Disqualified Voting Participant" shall mean any participant meeting
the requirements of sub-clauses (x), (y)(A) and (y)(B) of clause (II) of the
second proviso appearing in Section 13.04(a) which (i) has refused to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement of the type described in Section 13.12(a) and which have been
approved by the Required Lenders and (ii) has been designated as a "Disqualified
Voting Participant" by the U.S. Borrower in a written notice to the
Administrative Agent.
"Dividend" shall have the meaning provided in Section 9.06.
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"Documents" shall mean and include (i) the Credit Documents, (ii) the
ABL Credit Documents, (iii) the Refinancing Documents, (iv) the Intercompany
Distribution Transaction Documents, (v) the Sale-Leaseback Transaction
Documents, (vi) the Existing Senior Notes Documents, (vii) the Intermediate
Holdco Credit Documents, (viii) the Wellbeing Project Financing Documents, (ix)
on and after the execution and delivery thereof, any Permitted Senior Notes
Document and (x) on and after the execution and delivery thereof, any Permitted
Refinancing Senior Notes Document.
"ββββ Canada" shall have the meaning provided in Section 12.14(a).
"Dole Settlement Company" shall mean the U.S. Borrower or a Qualified
U.S. Obligor that is not subject to the guaranty limitation applicable to the
Bermuda Partnership Partners contained in the U.S. Subsidiaries Guaranty.
"Dollars" shall mean U.S. Dollars.
"Dollar Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Dollars.
"Dollar Denominated Bank Guaranty Outstandings" shall mean, at any
time, the sum of (i) the aggregate Face Amount of all outstanding Dollar
Denominated Bank Guaranties at such time plus (ii) the aggregate amount of all
Unreimbursed Payments with respect to Dollar Denominated Bank Guaranties at such
time.
"Dollar Denominated Letter of Credit" shall mean each Letter of Credit
denominated in Dollars.
"Dollar Denominated Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Dollar
Denominated Letters of Credit at such time plus (ii) the aggregate amount of all
Unpaid Drawings with respect to Dollar Denominated Letters of Credit at such
time.
"Dollar Equivalent" of an amount denominated in a currency other than
Dollars shall mean, at any time for the determination thereof, the amount of
Dollars which could be purchased with the amount of such currency involved in
such computation at the spot exchange rate therefor as quoted by the
Administrative Agent as of 11:00 A.M. (New York time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date
(or, in the case of any determination pursuant to Section 1.14 or 13.22 hereof
or Section 26 (or any analogous provision) of any Subsidiaries Guaranty, on the
date of determination); provided that (x) the Dollar Equivalent of any Unpaid
Drawing under a Non-Dollar Denominated Letter of Credit shall be determined at
the time the drawing under the related Letter of Credit was paid or disbursed by
the respective Issuing Lender, and (y) the Dollar Equivalent of any Unreimbursed
Payment under a Non-Dollar Denominated Bank Guaranty shall be determined at the
time the payment under the related Bank Guaranty was made or disbursed by the
respective Bank Guaranty Issuer; provided, further, that for purposes of (x)
determining compliance with Sections 1.01(a), (b) and (c), 2A.01(c), 2B.01(c)
and 4.02(a) and (y) calculating Fees pursuant to Section 3.01, the Dollar
Equivalent of any amounts denominated in a currency other than Dollars shall be
revalued on a monthly basis using the spot exchange rates therefor as quoted in
the Wall Street
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Journal (or, if same does not provide such exchange rates, on such other basis
as is reasonably satisfactory to the Administrative Agent) on the first Business
Day of each calendar month, provided, however, that at any time during a
calendar month, if the Aggregate CL Exposure (for the purposes of the
determination thereof, using the Dollar Equivalent as recalculated based on the
spot exchange rate therefor as quoted in the Wall Street Journal (or, if same
does not provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) on the respective date of
determination pursuant to this exception) would exceed 85% of the Total
Credit-Linked Commitment, then in the sole discretion of the Administrative
Agent or at the request of the Required Lenders, the Dollar Equivalent shall be
reset based upon the spot exchange rates on such date as quoted in the Wall
Street Journal (or, if same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent), which rates
shall remain in effect until the first Business Day of the next succeeding
calendar month or such earlier date, if any, as the rate is reset pursuant to
this proviso. Notwithstanding anything to the contrary contained in this
definition, at any time that a Default or an Event of Default then exists, the
Administrative Agent may revalue the Dollar Equivalent of any amounts
outstanding under the Credit Documents in a currency other than Dollars in its
sole discretion using the spot exchange rates therefor as quoted in the Wall
Street Journal (or, if the same does not provide such exchange rates, on such
other basis as is reasonably satisfactory to the Administrative Agent).
"Domestic Subsidiary" shall mean, as to any Person, any Subsidiary of
such Person incorporated or organized in the United States or any State or
territory thereof.
"Drawing" shall have the meaning provided in Section 2A.05(b).
"Eligible Transferee" shall mean and include a commercial bank, a
mutual fund, an insurance company, a financial institution, a "qualified
institutional buyer" (as defined in Rule 144A of the Securities Act), any fund
that regularly invests in bank loans or any other "accredited investor" (as
defined in Regulation D of the Securities Act), but in any event excluding any
individual and Holdings and its Subsidiaries and Affiliates.
"EMU Legislation" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states, being in part legislative measures to implement the third
stage of the European Monetary Union.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by Holdings or any of its
Subsidiaries under any Environmental Law or any permit issued to Holdings or any
of its Subsidiaries under any such law (hereafter "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
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"Environmental Law" shall mean any federal, state or local policy
having the force and effect of law, statute, law, rule, regulation, ordinance,
code or rule of common law now or hereafter in effect and in each case as
amended, and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment (for purposes
of this definition (collectively, "Laws")), relating to the indoor or outdoor
environment, or Hazardous Materials or health and safety to the extent such
health and safety issues arise under the Occupational Safety and Health Act of
1970, as amended, or any such similar Laws.
"Equity Infusion" shall mean (i) in the case of Holdings, the sale or
issuance of Equity Interests of Holdings to, or a capital contribution to
Holdings by, βββββ β. βββββββ or any of his affiliates and (ii) in the case of
Intermediate Holdco, the sale or issuance of Equity Interests of Intermediate
Holdco to, or a capital contribution to Intermediate Holdco by, Holdings which
is financed by Holdings solely with the proceeds of the sale or issuance of
Equity Interests and/or capital contributions described in preceding clause (i).
"Equity Interests" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interest in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"Equity Investors" shall mean, collectively, βββββ β. βββββββ, the
βββββ β. βββββββ Living Trust and Castle & βββββ Holdings, Inc.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on the
Original Effective Date and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Holdings or a Subsidiary of Holdings would be
deemed to be a "single employer" (i) within the meaning of Section 414(b), (c),
(m) or (o) of the Code or (ii) as a result of Holdings or a Subsidiary of
Holdings being or having been a general partner of such Person.
"Euro Denominated Bank Guaranty" shall mean each Bank Guaranty
denominated in Euros.
"Euro Denominated Letter of Credit" shall mean each Letter of Credit
denominated in Euros.
"Eurodollar Loans" shall mean each Loan designated as such by the
respective Borrower or Borrowers at the time of the incurrence thereof or
conversion thereto.
"Eurodollar Rate" shall mean, for any Interest Period, in the case of
any Loan, (i) the arithmetic average (rounded upwards to the nearest 1/16 of 1%)
of the offered quotation to first class banks in the interbank Eurodollar market
by DBAG for U.S. dollar deposits of amounts in immediately available funds
comparable to the principal amount of the applicable
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Eurodollar Loan for which the Eurodollar Rate is being determined with
maturities comparable to the Interest Period for which such Eurodollar Rate will
apply, as of approximately 10:00 A.M. (New York time) on the Interest
Determination Date divided by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D). The determination of the Eurodollar Rate by the
Administrative Agent shall be conclusive and binding on the Borrowers absent
manifest error.
"Euros" and the designation "E" shall mean the currency introduced on
January 1, 1999 at the start of the third stage of European economic and
monetary union pursuant to the Treaty (expressed in euros).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
the sum of, without duplication, (i) Adjusted Consolidated Net Income for such
period and (ii) the decrease, if any, in Adjusted Consolidated Working Capital
from the first day to the last day of such period, minus (b) the sum of, without
duplication, (i) the aggregate amount of all Capital Expenditures made by the
U.S. Borrower and its Subsidiaries during such period (other than Capital
Expenditures to the extent financed with equity proceeds, Equity Interests,
asset sale proceeds, insurance proceeds or Indebtedness (other than with
proceeds of ABL Loans, Original Revolving Loans, or Original Swingline Loans,
(ii) the aggregate amount of permanent principal payments of Indebtedness for
borrowed money of the U.S. Borrower and its Subsidiaries and the permanent
repayment of the principal component of Capitalized Lease Obligations of the
U.S. Borrower and its Subsidiaries during such period (other than (A)
repayments, to the extent made with asset sale proceeds, equity proceeds,
insurance proceeds or Indebtedness, (B) repayments of Original Loans, unless
same were required as a result of a Scheduled Repayment (as defined in the
Original Credit Agreement) under Section 4.02(b) of the Original Credit
Agreement, (C) repayments of ABL Loans or (D) a Scheduled Repayment under
Section 4.02(b), as the case may be) and (iii) the increase, if any, in Adjusted
Consolidated Working Capital from the first day to the last day of such period.
"Excess Cash Flow Payment Period" shall mean, with respect to any
Excess Cash Payment Date, the immediately preceding Fiscal Year of Holdings.
"Excess Cash Payment Date" shall mean the date occurring 3 Business
Days after the 90th day following the last day of a Fiscal Year of Holdings.
"Exchange Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, in each case determined on the date of occurrence of a
Sharing Event (after giving effect to any actions to occur on, or promptly
after, such date pursuant to Section 1.14(a), but before giving effect to any
actions to occur on such date pursuant to Section 1.14(b)) of which: (a) the
numerator shall be the sum of (i) the CL Percentage of such Lender (if a CL
Lender) of (x) the aggregate amount of Letter of Credit Outstandings (calculated
by giving full effect to the proviso to the definition of Stated Amount
contained herein) and (y) the aggregate amount of
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Bank Guaranty Outstandings (calculated by giving full effect to the proviso to
the definition of Face Amount contained herein) and (ii) the aggregate principal
amount of the outstanding Term Loans of such Lender; and (b) the denominator of
which shall be the sum of (i) the sum of (x) the aggregate amount of Letter of
Credit Outstandings (calculated by giving full effect to the proviso to the
definition of Stated Amount contained herein) and (y) the aggregate amount of
Bank Guaranty Outstandings (calculated by giving full effect to the proviso to
the definition of Face Amount contained herein) and (ii) the aggregate principal
amount of all outstanding Term Loans of all Lenders.
"Excluded Bermuda Insurance Companies" shall mean and include (i)
Ashford Company Limited, a limited liability corporation organized under laws of
Bermuda, and (ii) Mendocino Limited, a limited liability corporation organized
under laws of Bermuda.
"Excluded Collateral" shall mean and include (i) each Principal
Property of the U.S. Borrower and any of its Restricted Subsidiaries, (ii) all
shares of capital stock or Indebtedness (as defined in the Existing 2013 Senior
Notes Indenture as in effect on the Initial Borrowing Date) of any Restricted
Subsidiary of the U.S. Borrower (which Indebtedness (as so defined) is then held
by the U.S. Borrower or any Restricted Subsidiary) and (iii) Margin Stock owned
or held by Holdings or any of its Subsidiaries, except to the extent required to
be pledged pursuant to Section 8.19; provided that (x) the collateral described
in preceding clauses (i) and (ii) shall cease to constitute "Excluded
Collateral" upon the repayment in full of all Existing 2009 Senior Notes and all
Existing 2013 Senior Notes and (y) as the term "Excluded Collateral" is used in
any Foreign Security Document, such term shall not include any Principal
Property referred to in clause (i) above.
"Excluded Domestic Subsidiary" shall mean County Line Mutual Water
Company, a Wholly-Owned Domestic Subsidiary of the U.S. Borrower.
"Excluded Event" shall mean the taking of any action, or the adoption
of any law, rule or regulation, by any governmental authority which results in a
deficiency that would otherwise give rise to a Default or Event of Default under
any of Sections 10.07, 10.08, 10.11(b), 10.11(c) and/or 10.12; provided that (i)
any such deficiency or default shall relate solely to a Foreign Subsidiary of
Holdings (other than a Foreign Subsidiary organized under the laws of Bermuda),
its business or properties and the Credit Documents to which such Foreign
Subsidiary is a party and (ii) the aggregate fair market value of all Property
of all Foreign Subsidiaries subject to any such deficiencies or defaults
(including all Property which would have been Property of the respective Foreign
Subsidiaries if the actions described in Section 10.12 had not been taken) shall
not exceed $15,000,000.
"Excluded Foreign Subsidiaries" shall mean Foreign Subsidiaries of the
U.S. Borrower organized in Qualified Non-U.S. Jurisdictions and listed on Part B
of Schedule XIII; provided that any Foreign Subsidiary listed on Part B of
Schedule XIII which merges or consolidates with or into any other Foreign
Subsidiary of the U.S. Borrower that is a Qualified Obligor organized in the
jurisdiction of organization of such listed Foreign Subsidiary shall cease to be
an "Excluded Foreign Subsidiary" for purposes of this Agreement.
"Existing Bank Guaranties" shall have the meaning provided in Section
2B.01(d).
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"Existing Indebtedness" shall mean and include Scheduled Existing
Indebtedness, and the Existing Senior Notes Documents and the Wellbeing Project
Financing.
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.13(iii).
"Existing Letters of Credit" shall have the meaning provided in
Section 2A.01(d).
"Existing Senior Notes" shall mean and include the Existing 2009
Senior Notes, the Existing 2013 Senior Notes, the Existing 2011 Senior Notes and
the Existing 2010 Senior Notes.
"Existing Senior Notes Documents" shall mean and include (i) the
Existing 2009 Senior Notes Documents, (ii) the Existing 2013 Senior Notes
Documents, (iii) the Existing 2011 Senior Notes Documents and (iv) the Existing
2010 Senior Notes Documents.
"Existing Senior Notes Indentures" shall mean and include (i) the
Existing 2009 Senior Notes Indenture, (ii) the Existing 2013 Senior Notes
Indenture, (iii) the Existing 2011 Senior Notes Indenture and (iv) the Existing
2010 Senior Notes Indenture.
"Existing 2011 Senior Notes" shall mean the U.S. Borrower's 8-7/8%
Senior Notes due 2011, issued pursuant to the Existing 2011 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2011 Senior Notes Documents" shall mean the Existing 2011
Senior Notes, the Existing 2011 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2011 Senior Notes or
Existing 2011 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2011 Senior Notes Indenture" shall mean the Indenture, dated
as of March 28, 2003, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2009 Senior Notes" shall mean the U.S. Borrower's 8-5/8%
Senior Notes due 2009, issued pursuant to the Existing 2009 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2009 Senior Notes Documents" shall mean the Existing 2009
Senior Notes, the Existing 2009 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2009 Senior Notes or
Existing 2009 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
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"Existing 2009 Senior Notes Indenture" shall mean the Indenture, dated
as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2010 Senior Notes" shall mean the U.S. Borrower's 7-1/4%
Senior Notes due 2010, issued pursuant to the Existing 2010 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2010 Senior Notes Documents" shall mean the Existing 2010
Senior Notes, the Existing 2010 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2010 Senior Notes or
Existing 2010 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2010 Senior Notes Indenture" shall mean the Indenture, dated
as of May 29, 2003, among the U.S. Borrower, any U.S. Subsidiary Guarantors from
time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Existing 2013 Senior Notes" shall mean the U.S. Borrower's 7-7/8%
Senior Notes due 2013, issued pursuant to the Existing 2013 Senior Notes
Indenture, as in effect on the Restatement Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof.
"Existing 2013 Senior Notes Documents" shall mean the Existing 2013
Senior Notes, the Existing 2013 Senior Notes Indenture and all other documents
executed and delivered with respect to the Existing 2013 Senior Notes or
Existing 2013 Senior Notes Indenture, as in effect on the Restatement Effective
Date and as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof.
"Existing 2013 Senior Notes Indenture" shall mean the Indenture, dated
as of July 15, 1993, among the U.S. Borrower, any U.S. Subsidiary Guarantors
from time to time party thereto and the trustee therefor, as in effect on the
Restatement Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Face Amount" of each Bank Guaranty shall, at any time, mean the
maximum amount payable thereunder (in each case determined without regard to
whether any conditions to payment could then be met, but after giving effect to
all previous payments made thereunder), provided that (x) except as such term is
used in Section 2B.02, the "Face Amount" of each Non-Dollar Denominated Bank
Guaranty shall be, on any date of calculation, the Dollar Equivalent of the
maximum amount payable in the applicable Alternative Currency thereunder
(determined without regard to whether any conditions to payment could then be
met but after giving effect to
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all previous payments made thereunder) and (y) except for purposes of Sections
2B.02 and 3.01(d), the definition of Non-Dollar Denominated B/G Cushion Amount
and in determining the respective proportional indemnification liabilities of
the Secured Creditors to the Collateral Agent and/or the Pledgee under the
applicable Security Documents, the Face Amount of any Non-Dollar Denominated
Bank Guaranty (as otherwise determined above) shall be increased (at each time
the Face Amount thereof is determined) by the Non-Dollar Denominated B/G Cushion
Amount for such Non-Dollar Denominated Bank Guaranty.
"Facing Fee" shall have the meaning provided in Section 3.01(b).
"Fair Market Value" shall mean, with respect to any asset, the price
at which a willing buyer, not an Affiliate of the seller, and a willing seller
who does not have to sell, would agree to purchase and sell such asset, as
determined in good faith by the board of directors or other governing body or,
pursuant to a specific delegation of authority by such board of directors or
governing body, a designated senior executive officer, of Holdings, or the
Subsidiary of Holdings selling such asset.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Lender of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Capped Foreign Subsidiary Guarantor" shall mean any Foreign
Credit Party organized under the laws of a jurisdiction in which (x) the
guaranties and/or secured obligations under the respective Credit Documents are
not required by the laws of such jurisdiction to be limited in any way and (y)
the guaranties and/or secured obligations under the respective Credit Documents
have been voluntarily limited (at the request of such Foreign Credit Party) to
reduce the amount of registration, notorial or other fees, taxes or amounts
payable in connection with the recordation or perfection of the security
interests purported to be created pursuant to the relevant Security Documents.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"First Priority" means, with respect to any Lien purported to be
created on any Collateral pursuant to any Security Document, that such Lien is
prior in right to any other Lien thereon, other than any Permitted Liens
(excluding Permitted Liens as described in clause (iii) of Section 9.03)
applicable to such Collateral which as a matter of law (and giving effect to any
actions taken pursuant to the last paragraph of Section 9.03) have priority over
the respective Liens on such Collateral created pursuant to the relevant
Security Document.
"Fiscal Quarter" means, for any Fiscal Year, each of (i) the first
twelve weeks of such Fiscal Year, (ii) the thirteenth week of such Fiscal Year
through the twenty-fourth week of such Fiscal Year, (iii) the twenty-fifth week
of such Fiscal Year through the forty-first week of
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such Fiscal Year and (iv) forty-second week of such Fiscal Year through the last
day of such Fiscal Year, as the case may be. For purposes of this Agreement, a
reference to the 1st Fiscal Quarter of any Fiscal Year shall be a reference to
the period referred to in clause (i) above; a reference to the 2nd Fiscal
Quarter of any Fiscal Year shall be a reference to the period referred to in
clause (ii) above; a reference to the 3rd Fiscal Quarter of any Fiscal Year
shall be a reference to the period referred to in clause (iii) above; and a
reference to the 4th Fiscal Quarter of any Fiscal Year shall be a reference to
the period referred to in clause (iv) above.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries
ending on the Saturday nearest to December 31 of each calendar year. For
purposes of this Agreement, any particular Fiscal Year shall be designated by
reference to the calendar year in which the majority of such Fiscal Year falls.
"Foreign Asset Transfer" shall mean, collectively, (i) the transfer by
Bermuda Partnership Partner #1 or the Bermuda Partnership of shares of
Transtrading Overseas Limited, (ii) the transfer by the U.S. Borrower of shares
of ββββ Pacific General Services Ltd. and (iii) the transfer by the U.S.
Borrower of shares of Castle & βββββ Worldwide Limited, in each case to ββββ
Foreign Holdings II Ltd. (or such other Foreign Subsidiary as is acceptable to
the Administrative Agent).
"Foreign Credit Party" shall mean the Bermuda Borrower and each
Foreign Subsidiary Guarantor.
"Foreign Credit Party Pledge Agreements" shall mean each Foreign
Credit Party Pledge Agreement (as defined in the Original Credit Agreement)
entered into by a Foreign Credit Party pursuant to the terms of the Original
Credit Agreement and each other pledge agreement entered into by a Foreign
Credit Party pursuant to the terms hereof covering promissory notes and Equity
Interests and governed by the laws of the jurisdiction in which such Foreign
Credit Party is organized, in each case as the same may be amended, restated,
modified and/or supplemented from time to time in accordance with the terms
thereof. Part A of Schedule XII sets forth a list of all Foreign Credit Party
Pledge Agreements in effect on the Restatement Effective Date (prior to giving
effect to the Foreign Security Document Acknowledgments and/or Amendments).
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Subsidiaries primarily for the benefit of employees of Holdings or any of
its Subsidiaries residing outside the United States of America, 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.
"Foreign Pledge Agreement" shall mean and include the Local Law Pledge
Agreements and the Foreign Credit Party Pledge Agreements.
"Foreign Security Agreements" shall mean each Foreign Security
Agreement (as defined in the Original Credit Agreement) entered into by a
Foreign Credit Party pursuant to the
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terms of the Original Credit Agreement, each Replacement Foreign Security
Agreement and each other security agreement, pledge agreement, mortgage,
debenture, deed of charge, document and/or instrument entered into by a Foreign
Credit Party pursuant to the terms hereof covering tangible and intangible
assets (including receivables, contract rights, securities, inventory,
equipment, real estate, leasehold interests, vessels, insurances, and material
patents, trademarks and other intellectual property but excluding Excluded
Collateral) owned by such Foreign Credit Party and governed by the laws of the
jurisdiction in which such Foreign Credit Party is organized, in each case as
the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof. Part C of Schedule XII sets forth a
list of all Replacement Foreign Security Agreements and all other Foreign
Security Agreements in effect on the Restatement Effective Date (prior to giving
effect to the Foreign Security Document Acknowledgment and/or Amendments).
"Foreign Security Document" shall mean each Security Document other
than a U.S. Security Document (including, without limitation, each Foreign
Pledge Agreement and each Foreign Security Agreement).
"Foreign Security Document Acknowledgement and/or Amendment" shall
have the meaning provided in Section 5.12.
"Foreign Subsidiaries Guaranty" shall mean the Foreign Subsidiaries
Guaranty, dated as of March 28, 2003, made by the Foreign Subsidiaries of
Holdings party thereto in favor of the Administrative Agent and shall include
any counterpart thereof and any other similar guaranty executed and delivered by
any Foreign Subsidiary of Holdings pursuant to Sections 8.11 or 9.11, in each
case, as the same may be amended, restated, modified and/or supplemented from
time to time in accordance with the terms thereof. A copy of the Foreign
Subsidiaries Guaranty as in effect on the Restatement Effective Date is attached
hereto as Exhibit G-3.
"Foreign Subsidiaries Guaranty Acknowledgement" shall have the meaning
provided in Section 5.10(b).
"Foreign Subsidiary" shall mean, as to any Person, any Subsidiary of
such Person that is not a Domestic Subsidiary of such Person.
"Foreign Subsidiary Guarantor" shall mean each Foreign Subsidiary of
Holdings (other than the Bermuda Borrower and any Non-Guarantor Subsidiary)
which executes and delivers a Foreign Subsidiaries Guaranty, unless and until
such time as the respective Foreign Subsidiary ceases to constitute a Foreign
Subsidiary or is released from all of its obligations under its Foreign
Subsidiaries Guaranty in accordance with the terms and provisions thereof;
provided that each Subsidiary of the U.S. Borrower organized under the laws of
Colombia which is a party to the Special Colombian Put Note Agreement shall be
treated as a "Foreign Subsidiary Guarantor" for all purposes of this Agreement,
unless and until such time as the respective Subsidiary ceases to constitute a
Subsidiary or is released from all of its obligations under the Special
Colombian Put Note Agreement.
"Foreign Unrestricted Subsidiary" of any Person shall mean any Foreign
Subsidiary of such Person that is an Unrestricted Subsidiary.
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"Fronting Fee" shall have the meaning provided in Section 3.01(d).
"ββββββ Property" shall have the meaning provided in Section
9.02(xix).
"Guaranteed Creditors" shall mean and include each of the Agents, the
Collateral Agent, the Lenders, the Issuing Lenders, the Bank Guaranty Issuers
and each Person (other than any Credit Party or any of its Subsidiaries) party
to an Interest Rate Protection Agreement or Other Hedging Agreement with a
Borrower and/or one or more of each Borrower's Subsidiaries, to the extent that
such Person constitutes a Secured Creditor under the Security Documents.
"Guarantors" shall mean and include each Credit Agreement Party and
each Subsidiary Guarantor.
"Guaranty" shall mean and include each Credit Agreement Party Guaranty
and each Subsidiaries Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Holdings" shall have the meaning provided in the first paragraph of
this Agreement.
"Holdings Common Stock" shall have the meaning provided in Section
7.13(a).
"Holdings Guaranty" shall mean the guaranty of Holdings pursuant to
Section 14.
"Incremental Term Loan" shall have the meaning provided in Section
1.01(c).
"Incremental Term Loan Borrower" shall mean (x) the U.S. Borrower,
with respect to U.S. Borrower Incremental Term Loans and (y) the Bermuda
Borrower, with respect to Bermuda Borrower Incremental Term Loans.
"Incremental Term Loan Borrowing Date" shall mean, with respect to
each Tranche of Incremental Term Loans, each date on which Incremental Term
Loans of such Tranche are incurred pursuant to Section 1.01(c) and as otherwise
permitted by Section 1.15.
"Incremental Term Loan Commitment" shall mean, for each Lender, any
commitment to make Incremental Term Loans provided by such Lender pursuant to
Section 1.15, in such amount as agreed to by such Lender in the respective
Incremental Term Loan Commitment Agreement and as set forth opposite such
Lender's name in Schedule I (as modified in accordance with Section 1.15)
directly below the column entitled "Incremental Term Loan Commitment", as the
same may be (x) reduced from time to time or terminated pursuant to
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Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a
result of assignments to and from such Lender pursuant to Sections 1.13 and/or
13.04(b).
"Incremental Term Loan Commitment Agreement" shall mean each
Incremental Term Loan Commitment Agreement in the form of Exhibit P
(appropriately completed) executed in accordance with Section 1.15.
"Incremental Term Loan Commitment Request Requirements" shall mean,
with respect to any request for an Incremental Term Loan Commitment made
pursuant to Section 1.15, the satisfaction of each of the following conditions
on the date of such request: (x) no Default or Event of Default then exists or
would result therefrom (for purposes of such determination, assuming the
relevant Loans in an aggregate principal amount equal to the full amount of
Incremental Term Loan Commitments then requested had been incurred, and the
proposed Permitted Acquisition (if any) to be financed with the proceeds of such
Loans had been consummated, on such date of request) and all of the
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects at such time (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date); (y) calculations are made by the U.S. Borrower of compliance with
the Total Leverage Ratio and the Senior Secured Leverage Ratio set forth Section
9.04(a) (assuming (and immediately after) the full utilization of the requested
Incremental Term Loan Commitments and the consummation of the proposed Permitted
Acquisition (if any) to be financed with the proceeds of the Loans pursuant
thereto (as well as all other Permitted Acquisitions and Significant Asset Sales
theretofore consummated after the first day of the respective Calculation
Period) regardless of whether any Indebtedness is then being incurred pursuant
to said Section 9.04(a)) for the Calculation Period most recently ended prior to
the date of the requested Incremental Term Loan Commitments, as set forth in a
certificate by an Authorized Officer of the U.S. Borrower furnished to the
Administrative Agent on the date of such request, and such calculations shall
show that, after giving effect to the foregoing assumptions in this clause (y)
and any additional Indebtedness being incurred in connection therewith, the U.S.
Borrower would be in compliance with each of the Total Leverage Ratio and the
Senior Secured Leverage Ratio as set forth in Section 9.04(a) as at the last day
of such Calculation Period on a Pro Forma Basis; and (z) no Incremental Term
Loan Commitments are then outstanding, unless the full amount such Incremental
Term Loan Commitments will be utilized on the date of the effectiveness of the
Incremental Term Loan Commitment Agreement to be entered into in connection with
the Incremental Term Loan Commitments of the new Tranche then being requested.
"Incremental Term Loan Commitment Requirements" shall mean, with
respect to any provision of an Incremental Term Loan Commitment on a given
Incremental Term Loan Commitment Date, the satisfaction of each of the following
conditions on or prior to the effective date of the respective Incremental Term
Loan Commitment Agreement: (r) no Default or Event of Default then exists or
would result therefrom (for purposes of such determination, assuming the
relevant Loans in an aggregate principal amount equal to the full amount of
Incremental Term Loan Commitments then provided had been incurred, and the
proposed Permitted Acquisition (if any) to be financed with the proceeds of such
Loans had been consummated, on such date of effectiveness) and all of the
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects at such time (unless
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stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date); (s) calculations are made by the U.S. Borrower of compliance with
the Total Leverage Ratio and the Senior Secured Leverage Ratio set forth Section
9.04(a) (assuming (and immediately after) the full utilization of the requested
Incremental Term Loan Commitments and the consummation of the proposed Permitted
Acquisition (if any) to be financed with the proceeds of the Loans pursuant
thereto (as well as all other Permitted Acquisitions and Significant Asset Sales
theretofore consummated after the first day of the respective Calculation
Period) regardless of whether any Indebtedness is then being incurred pursuant
to said Section 9.04(a)) for the Calculation Period most recently ended prior to
the date of the requested Incremental Term Loan Commitments, as set forth in a
certificate by an Authorized Officer of the U.S. Borrower furnished to the
Administrative Agent on the date of such request, and such calculations shall
show that, after giving effect to the foregoing assumptions in this clause (s)
and any additional Indebtedness being incurred in connection therewith, the U.S.
Borrower would be in compliance with each of the Total Leverage Ratio and the
Senior Secured Leverage Ratio as set forth in Section 9.04(a) as at the last day
of such Calculation Period on a Pro Forma Basis; (t) the delivery by Holdings to
the Administrative Agent of an officer's certificate executed by an Authorized
Officer of Holdings and certifying as to compliance with preceding clauses (r)
and (s) and containing the calculations required by clause (s); (u) the delivery
by Holdings to the Administrative Agent of an officer's certificate executed by
an Authorized Officer of Holdings certifying which provisions of the ABL Credit
Agreement, the Existing 2009 Senior Notes Indenture, the Existing 2013 Senior
Notes Indenture, the Existing 2010 Senior Notes Indenture, the Existing 2011
Senior Notes Indenture, the Intermediate Holdco Credit Agreement, each Wellbeing
Project Financing Document and (after the execution and delivery thereof) each
Permitted Senior Notes Indenture and each Permitted Senior Refinancing Notes
Document that the respective incurrence of Incremental Loans will be justified
under and demonstrating in reasonable detail that the full amount of such
Incremental Term Loans may be incurred in accordance with, and will not violate
the provisions of, the ABL Credit Agreement, the Existing 2009 Senior Notes
Indenture, the Existing 2013 Senior Notes Indenture, the Existing 2010 Senior
Notes Indenture, the Existing 2011 Senior Notes Indenture, the Intermediate
Holdco Credit Agreement, each Wellbeing Project Financing Document and (after
the execution and delivery thereof) each Permitted Senior Notes Indenture and
each Permitted Senior Refinancing Notes Document; (v) the delivery by Holdings
to the Administrative Agent of an acknowledgement in form and substance
reasonably satisfactory to the Administrative Agent and executed by each
Guarantor (in the case of an Incremental Term Loan Commitment requested by the
Bermuda Borrower) or each U.S. Credit Party other than the U.S. Borrower (in the
case of an Incremental Term Loan Commitment requested by the U.S. Borrower), as
the case may be, acknowledging that such Incremental Term Loan Commitment and
all Loans subsequently incurred pursuant to such Incremental Term Loan
Commitment shall constitute (and be included in the definition of) "Guaranteed
Obligations" under each Guaranty of such Guarantor; (w) the delivery by Holdings
and its Subsidiaries of such technical amendments, modifications and/or
supplements to the respective Security Documents as are reasonably requested by
the Administrative Agent to ensure that the additional Obligations to be
incurred pursuant to the Incremental Term Loan Commitments are secured by, and
entitled to the benefits of, the relevant Security Documents, and each of the
Lenders hereby agrees to, and authorizes the Collateral Agent to enter into, any
such technical amendments, modifications and/or supplements; (x) the delivery by
Holdings to the Administrative Agent of
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an opinion or opinions, in form and substance reasonably satisfactory to the
Administrative Agent, from counsel to the Credit Parties reasonably satisfactory
to the Administrative Agent and dated such date, covering such of the matters
set forth in the opinions of counsel delivered to the Administrative Agent on
the Initial Borrowing Date pursuant to Section 5.03 of the Original Credit
Agreement as may be reasonably requested by the Administrative Agent, and such
other matters incident to the transactions contemplated thereby as the
Administrative Agent may reasonably request; (y) the delivery by Holdings and
the other Credit Parties to the Administrative Agent of such other officers'
certificates, resolutions and evidence of good standing as the Administrative
Agent shall reasonably request; and (z) the completion by Holdings and the other
Credit Parties of such other actions as the Administrative Agent may reasonably
request in connection with such Incremental Term Loan Commitment, it being
understood and agreed that the Administrative Agent may (in its sole discretion)
agree that the delivery of technical amendments, modifications and/or
supplements to the respective Security Documents pursuant to sub-clause (w) of
the preceding sentence may occur after the incurrence of Loans to be made
pursuant to the respective Incremental Term Loan Commitments (subject to a time
frame to be agreed by the Administrative Agent), in which case said sub-clause
(w) will be deemed satisfied at the time of the incurrence of such Loans, so
long as such technical amendments, modifications and/or supplements to the
respective Security Documents are subsequently delivered within the time frame
stipulated by the Administrative Agent.
"Incremental Term Loan Commitment Termination Date" shall mean, with
respect to any Tranche of Incremental Term Loans, the last date by which
Incremental Term Loans under such Tranche may be incurred under this Agreement,
which date shall be set forth in the respective Incremental Term Loan Commitment
Agreement but may be no later than the date which is 12 months prior to the then
latest Maturity Date.
"Incremental Term Loan Lender" shall have the meaning provided in
Section 1.15(b).
"Incremental Term Loan Maturity Date" shall mean, for any Tranche of
Incremental Term Loans, the final maturity date set forth for such Tranche of
Incremental Term Loans in the respective Incremental Term Loan Commitment
Agreement relating thereto, provided that the final maturity date for all
Incremental Term Loans of a given Tranche shall be the same date.
"Incremental Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iii).
"Incremental Term Note" shall have the meaning provided in Section
1.05(a).
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn or paid under all
letters of credit, bankers' acceptances, bank guaranties and similar obligations
issued for the account of such Person and all unpaid drawings and unreimbursed
payments in respect of such letters of credit, bankers' acceptances, bank
guaranties and similar obligations, (iii) all indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of
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this definition secured by any Lien on any property owned by such Person,
whether or not such indebtedness has been assumed by such Person (provided that,
if the Person has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be in an amount equal to the
fair market value of the property to which such Lien relates as determined in
good faith by such Person), (iv) the aggregate amount of all Capitalized Lease
Obligations of such Person, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person, and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement, Commodity Agreements or under
any similar type of agreement and (viii) obligations arising under Synthetic
Leases. Notwithstanding the foregoing, Indebtedness shall not include trade
payables, accrued expenses and deferred tax and other credits incurred by any
Person in accordance with customary practices and in the ordinary course of
business of such Person.
"Indemnified Person" shall have the meaning provided in Section 13.01.
"Individual CL Exposure" of any CL Lender shall mean, at any time,
such CL Lender's applicable CL Percentage of the Aggregate CL Exposure.
"Initial Borrowing Date" shall have the meaning provided in the
Original Credit Agreement.
"Intercompany Debt" shall mean any Indebtedness, payables or other
obligations, whether now existing or hereafter incurred, owed by Holdings or any
Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings.
"Intercompany Distribution Transaction Documents" shall mean all of
the documents and instruments entered into in connection with the Intercompany
Distribution Transactions, in each case as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Intercompany Distribution Transactions" shall have the meaning
provided in Section 5.09(b) of the Original Credit Agreement.
"Intercompany Note" shall mean a promissory note evidencing
intercompany loans made pursuant to Sections 9.05(vi), (xxi) and (xxii), in each
case duly executed and delivered substantially in the form of Exhibit K, with
blanks completed in conformity herewith (or such other form as may be approved
by the Administrative Agent or the Required Lenders).
"Intercompany Receivables Documents" shall mean those certain
intercompany purchase agreements, dated as of March 28, 2003, entered into by
the U.S. Borrower and the Bermuda Partnership Partners, providing for the sale
of accounts receivable by the Bermuda Partnership Partners to, and the purchase
of accounts receivable by, the U.S. Borrower, which sale arrangements shall be
on a non-recourse basis and for reasonably equivalent value and otherwise on
terms satisfactory to the Agents, as the same may be amended, modified and/or
supplemented from time to time.
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"Intercompany Scheduled Existing Indebtedness" shall have the meaning
provided in Section 7.21.
"Intercompany Subordination Agreement" shall mean the Intercompany
Subordination Agreement, dated as of March 28, 2003, made by Holdings and
various of its Subsidiaries party thereto in favor of the Administrative Agent,
as the same may be amended, restated, modified and/or supplemented from time to
time in accordance with the terms thereof (including, without limitation, as
modified by the Intercompany Subordination Agreement Acknowledgement). A copy of
the Intercompany Subordination Agreement as in effect on the Restatement
Effective Date is attached hereto as Exhibit O-2.
"Intercompany Subordination Agreement Acknowledgement" shall have the
meaning provided in Section 5.10(c).
"Intercreditor Agreement" shall have the meaning provided in Section
5.18.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall mean (i) with respect to any Eurodollar Loan,
the interest period applicable thereto, as determined pursuant to Section 1.09
and (ii) as to any investment of the Credit-Linked Deposits, the period
commencing on the Restatement Effective Date and ending on the date that is one
month thereafter and each successive one month period thereafter, provided that
(x) if any Interest Period for the Credit-Linked Deposits begins on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the last Business Day
of such calendar month, and (y) if any Interest Period for the Credit-Linked
Deposits would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, although if
any Interest Period for the Credit-Linked Deposits would otherwise expire on a
day which is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
"Intermediate Holdco" shall have the meaning provided in the first
paragraph of this Agreement.
"Intermediate Holdco Collateral" shall have the meaning provided in
the U.S. Pledge Agreement.
"Intermediate Holdco Credit Agreement" shall mean that certain Second
Lien Senior Credit Agreement, dated as of July 22, 2004, among Intermediate
Holdco, Corporate Holdco, the Lenders from time to time party thereto, Deutsche
Bank AG New York branch, as Agent (as defined therein) and Deutsche Bank
Securities Inc., as Arranger (as defined therein),
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as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Intermediate Holdco Credit Documents" shall mean the "Credit
Documents" as defined in the Intermediate Holdco Credit Agreement, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Intermediate Holdco Indebtedness" shall mean the Indebtedness of
Intermediate Holdco and Corporate Holdco (as co-issuers) pursuant to the
Intermediate Holdco Credit Documents.
"Intermediate Holdco Irrevocable Prepayment Notice" shall have the
meaning provided in Section 5.08(a).
"Intermediate Holdco Paying Agent" shall have the meaning provided in
Section 5.08(a).
"Intermediate Holdco Prepayment Consummation" shall have the meaning
provided in Section 8.21.
"Intermediate Holdco Prepayment Date" shall have the meaning provided
in Section 5.08(a).
"Intermediate Holdco Prepayment Funds" shall have the meaning provided
in Section 5.08(a).
"Intermediate Holdco Refinancing" shall have the meaning provided in
Section 5.08.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"Issuing Lender" shall mean (i) if and to the extent it agrees to act
as such, any Agent (and any of such Agent's affiliates and/or branches), (ii)
any ABL Lender (and any of such ABL Lender's affiliates and/or branches) or any
CL Lender (and any of such CL Lender's affiliates and/or branches) which at the
request of the U.S. Borrower or the Bermuda Borrower and with the consent of the
Administrative Agent agrees, in such ABL Lender's or CL Lender's (or their
respective affiliate's or branch's) sole discretion, to become an Issuer Lender
for the purpose of issuing Letters of Credit pursuant to Section 2A and (iii)
with respect to the Existing Letters of Credit, the Lender or Original Lender
(and any of such Lender's or Original Lender's affiliates and/or branches)
designated as the issuer thereof on Part A of Schedule XI shall be the Issuing
Lender thereof.
"Italian Collateral Documents" shall have the meaning provided in
Section 12.15(i).
"Judgment Currency" shall have the meaning provided in Section
13.22(a).
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"Judgment Currency Conversion Date" shall have the meaning provided in
Section 13.22(a).
"Landlord-Lender Agreement" shall mean each agreement between a
landlord of each U.S. Leasehold Property and the Collateral Agent entered into
pursuant to the terms of this Agreement.
"L/C Participant" shall have the meaning provided in Section 2A.04(a).
"L/C Participation" shall have the meaning provided in Section
2A.04(a).
"L/C Supportable Indebtedness" shall mean (i) obligations of the U.S.
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation, surety
bonds and other similar statutory obligations, (ii) obligations of the U.S.
Borrower and its Wholly-Owned Subsidiaries under bank guaranties issued by
financial institutions in support of obligations of the U.S. Borrower and its
Wholly-Owned Subsidiaries otherwise permitted to exist pursuant to the terms of
this Agreement and (iii) such other obligations of the U.S. Borrower or any of
its Wholly-Owned Subsidiaries as are reasonably acceptable to the Administrative
Agent and the respective Issuing Lender and otherwise permitted to exist
pursuant to the terms of this Agreement.
"Lead Arranger" shall mean DBSI, each in its capacity as Lead Arranger
and Sole Book Runner.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Leasehold Property" shall mean each Real Property leased by the U.S.
Borrower or any of its Subsidiaries and for which Landlord-Lender Agreements
shall be required pursuant to this Agreement.
"Lender" shall mean and include each financial institution with a
Commitment (or Original Tranche B Term Loans to be converted into Tranche C Term
Loans on the Restatement Effective Date) listed on Schedule I (as amended from
time to time), as well as any Person that becomes a "Lender" hereunder pursuant
to Sections 1.13, 1.15, and/or 13.04(b). Unless the context otherwise requires,
each reference in this Agreement to a Lender includes each lending office
(including any Affiliate of the respective Lender) of the respective Lender
designated from time to time pursuant to Section 1.12.
"Lender Default" shall mean (i) the wrongful refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing, to
fund its portion of any unreimbursed payment under Sections 2A.04 or 2B.04 or
(ii) a Lender having notified the Administrative Agent and/or any Credit
Agreement Party that it does not intend to comply with its obligations under
Sections 1.01, 2A.03 or 2B.03 in circumstances where such non-compliance would
constitute a breach of such Lender's obligations under the respective Section.
"Letter of Credit" shall have the meaning provided in Section
2A.01(a).
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"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit which have
not terminated at such time and (ii) the aggregate amount of all Unpaid Drawings
in respect of all Letters of Credit at such time.
"Letter of Credit Request" shall have the meaning provided in Section
2A.03(a).
"LIBOR Rate" shall mean, for any Interest Period with respect to the
investment of the Credit-Linked Deposits, the rate for deposits in Dollars for a
period of one month which appears on Telerate Page 3750 (or any successor page)
as of 11:00 A.M. (London time) on the day that is two Business Days preceding
the beginning of such Interest Period. If such rate does not appear on Telerate
Page 3750 (or any successor page), the rate for that Interest Period will be the
rate determined in good faith by the Administrative Agent on the basis of the
rates at which deposits in Dollars are offered by four major banks in the London
interbank market at approximately 11:00 A.M. (London time), on the day that is
two Business Days preceding the beginning of the new Interest Period to prime
banks in the London interbank market for a period of one month commencing on the
beginning of the new Interest Period and in the then outstanding amount of the
Credit-Linked Deposits. The Administrative Agent will request the principal
London office of each of such four major banks in the London interbank market to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that new Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that Interest Period will be the arithmetic mean of the rates quoted by major
banks in New York City, selected by the Administrative Agent, at approximately
11:00 A.M. (New York City time), on the beginning of the new Interest Period for
loans in Dollars to leading European banks for a period of one month commencing
on the beginning of the new Interest Period and in the amount of the
Credit-Linked Deposits.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or other),
charge, preference, priority or other security agreement of any kind or nature
whatsoever (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the UCC or any similar recording or notice
statute, and any lease having substantially the same effect as the foregoing).
"Loan" shall mean each Tranche B Term Loan, each Tranche C Term Loan
and each Incremental Term Loan.
"Local Law Pledge Agreements" shall mean the Local Law Pledge
Agreements (as defined in the Original Credit Agreement) entered into pursuant
to the Original Credit Agreement and any other pledge agreement entered into by
a Credit Party pursuant to this Agreement (x) covering promissory notes of,
and/or Equity Interests in, one or more Persons organized under the laws of a
different jurisdiction from the jurisdiction of organization of such Credit
Party and (y) governed by the laws of the jurisdiction or jurisdictions in which
the Person or Persons whose promissory notes or Equity Interests are being
pledged is (or are) organized, in each case as the same may be amended,
restated, modified and/or supplemented from time to time in accordance with the
terms thereof. Part B of Schedule XII sets forth a list of all Local Law Pledge
Agreements in effect on the Restatement Effective Date.
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"Majority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Agreements" shall have the meaning provided in Section
5.13(ii).
"Margin Regulations" shall mean, collectively, Regulation T,
Regulation U and Regulation X.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the business, properties, assets, nature of assets, operations, liabilities,
condition (financial or otherwise) or prospects of (A) Holdings and its
Subsidiaries taken as a whole or (B) the U.S. Borrower and its Subsidiaries
taken as a whole, or (ii) a material adverse effect (x) on the rights or
remedies of the Lenders or any Agent hereunder or under any other Credit
Document or (y) on the ability of any Credit Party to perform its obligations to
the Lenders or any Agent hereunder or under any other Credit Document; provided
that the occurrence of an Excluded Event shall not constitute a "Material
Adverse Effect" for purposes of this definition.
"Material Foreign Subsidiary" shall mean, at any time, any Foreign
Subsidiary of Holdings the net book value of the assets of which equals or
exceeds $5,000,000 at such time; provided that for purposes of (and only of)
Section 8.01(i), the term "Material Foreign Subsidiary" shall mean, at any time,
any Foreign Subsidiary of Holdings the net book value of the assets of which
equals or exceeds $10,000,000 at such time.
"Material Governmental Investigation" shall mean, at any time, any
material governmental investigation in a country in which the aggregate net book
value of the assets owned by Holdings and its Subsidiaries in such country
(determined as of the last day of the Fiscal Quarter then last ended) exceeds
$25,000,000.
"Maturity Date" shall mean (i) with respect to Tranche B Term Loans,
the Tranche B/C Term Loan Maturity Date, (ii) with respect to Tranche C Term
Loans, the Tranche B/C Term Loan Maturity Date, (iii) with respect to
Incremental Term Loans of a given Tranche, the respective Incremental Term Loan
Maturity Date therefor, and (iv) with respect to the CL Tranche, the CL Maturity
Date.
"Maximum Incremental Term Loan Commitment Amount" shall mean
$250,000,000.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Holdings Common Stock (based on the average closing trading price
of the Holdings Common Stock for the 20 trading days immediately prior to the
date of such Permitted Acquisition on the stock exchange on which Holdings
Common Stock is listed or, if Holdings Common Stock is not so listed, the good
faith determination of the senior management of Holdings) issued (or to be
issued) as consideration in connection with such Permitted Acquisition
(including, without limitation,
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Holdings Common Stock which may be required to be issued as earnout
consideration upon the achievement of certain future performance goals of the
respective Acquired Entity or Business), (ii) the aggregate amount of all cash
paid (or to be paid) by Holdings or any of its Subsidiaries in connection with
such Permitted Acquisition (including, without limitation, payments of fees and
costs and expenses in connection therewith) and all contingent cash purchase
price or other earnout obligations of Holdings and its Subsidiaries incurred in
connection therewith (as determined in good faith by Holdings), (iii) the
aggregate principal amount of all Indebtedness assumed, incurred and/or issued
in connection with such Permitted Acquisition to the extent permitted by Section
9.04 and (iv) the fair market value (determined in good faith by senior
management of Holdings) of all other consideration payable in connection with
such Permitted Acquisition.
"Minimum Applicable Facing Fee" shall mean $500.
"Minimum Applicable Fronting Fee" shall mean $500.
"Minimum Borrowing Amount" shall mean, for any Loans, $5,000,000.
"Moody's" shall mean βββββ'β Investors Service, Inc.
"Mortgage" shall mean each mortgage, deed of trust or deed to secure
debt required to be delivered with respect to any Real Property pursuant to the
terms of this Agreement (including, after the execution and delivery thereof,
each Additional Mortgage covering a Mortgaged Property), together with any
assignment of leases and rents to be executed in connection therewith, in each
case as the same may be amended, modified and/or supplemented from time to time
in accordance with the terms hereof and thereof.
"Mortgage Policy" shall mean each mortgage title insurance policy (and
all endorsements thereto) for each Mortgaged Property required to be delivered
pursuant to this Agreement.
"Mortgaged Property" shall mean each Real Property owned by Holdings
or any of its Subsidiaries and required to be mortgaged pursuant to this
Agreement (including, after the execution and delivery of any Additional
Mortgage covering Real Property, the respective Additional Mortgaged Property).
"Multiemployer Plan" shall mean (i) any plan, as defined in Section
4001(a)(3) of ERISA, which is maintained or contributed to (or to which there is
an obligation to contribute to) by Holdings or a Subsidiary of Holdings or an
ERISA Affiliate and that is subject to Title IV of ERISA, and (ii) each such
plan for the five year period immediately following the latest date on which
Holdings, a Subsidiary of Holdings or an ERISA Affiliate maintained, contributed
to or had an obligation to contribute to such plan.
"βββββββ" shall mean (i) βββββ β. βββββββ, individually, and as
trustee for the βββββ β. βββββββ Living Trust and (ii) the βββββ β. βββββββ
Living Trust, dated as of May 28, 1986, as amended.
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"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Incremental Term Loan Commitment and/or Total Credit-Linked Commitment
and/or repayment of Term Loans pursuant to Section 3.03 or 4.02, as the case may
be, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such event, net of reasonable transaction costs
(including, as applicable, any underwriting, brokerage or other customary
commissions and reasonable legal, advisory and other fees and expenses
associated therewith) received from any such event.
"Net Sale Proceeds" shall mean for any sale or other disposition of
assets, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such sale or other disposition of assets, net of
(i) reasonable transaction costs (including, without limitation, any
underwriting, brokerage or other customary selling commissions, reasonable
legal, advisory and other fees and expenses (including title and recording
expenses), associated therewith and sales, VAT and transfer taxes arising
therefrom), (ii) payments of unassumed liabilities relating to the assets sold
or otherwise disposed of at the time of, or within 30 days after, the date of
such sale or other disposition, (iii) the amount of such gross cash proceeds
required to be used to permanently repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement and the Indebtedness of
the ABL Lenders under the ABL Credit Documents) which is secured by the
respective assets which were sold or otherwise disposed of, and (iv) the
estimated net marginal increase in income taxes which will be payable by
Holdings' consolidated group or any Subsidiary of Holdings with respect to the
Fiscal Year in which the sale or other disposition occurs as a result of such
sale or other disposition; provided, however, that such gross proceeds shall not
include any portion of such gross cash proceeds which Holdings determines in
good faith should be reserved for post-closing adjustments (to the extent
Holdings delivers to the Lenders a certificate signed by its chief financial
officer or treasurer, controller or chief accounting officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than six
months following the date of the respective asset sale), the amount (if any) by
which the reserved amount in respect of such sale or disposition exceeds the
actual post-closing adjustments payable by Holdings or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by Holdings and/or any
of its Subsidiaries from such sale or other disposition.
"New Credit Party" shall mean and include any Credit Party which was
not a Credit Party under, and as defined in, the Original Credit Agreement on
the Original Effective Date.
"New Foreign Subsidiary Guarantor" shall mean and include any Foreign
Subsidiary Guarantor which was not a Foreign Subsidiary Guarantor under, and as
defined in, the Original Credit Agreement on the Original Effective Date.
"New U.S. Credit Party" shall mean and include each New Credit Party
that is a U.S. Credit Party.
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"Non-Consenting Tranche C Term Loan Lender" shall mean each Lender
under, and as defined in, the Original Credit Agreement with outstanding
Original Tranche B Term Loans on the Restatement Effective Date (immediately
prior to giving effect thereto) that is not a Consenting Tranche C Term Loan
Lender.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Non-Dollar Currencies" shall mean and include each Alternative
Currency.
"Non-Dollar Denominated Bank Guaranty" shall mean all Bank Guaranties
other than Dollar Denominated Bank Guaranties.
"Non-Dollar Denominated Bank Guaranty Outstandings" shall mean all
Bank Guaranty Outstandings other than Dollar Denominated Bank Guaranty
Outstandings.
"Non-Dollar Denominated B/G Cushion Amount" shall mean, at any time
with respect to any Non-Dollar Denominated Bank Guaranty, an amount equal to 5%
of the Face Amount of such Non-Dollar Denominated Bank Guaranty, with such Face
Amount determined for this purpose in accordance with the definition thereof
contained herein without giving effect to clause (y) of the proviso thereto.
"Non-Dollar Denominated Letters of Credit" shall mean all Letters of
Credit other than Dollar Denominated Letters of Credit.
"Non-Dollar Denominated Letter of Credit Outstandings" shall mean all
Letter of Credit Outstandings other than Dollar Denominated Letter of Credit
Outstandings.
"Non-Dollar Denominated L/C Cushion Amount" shall mean, at any time
with respect to any Non-Dollar Denominated Letter of Credit, an amount equal to
5% of the Stated Amount of such Non-Dollar Denominated Letter of Credit, with
such Stated Amount determined for this purpose in accordance with the definition
thereof contained herein without giving effect to clause (y) of the proviso
thereto.
"Non-Guarantor Subsidiaries" shall mean (i) on the Restatement
Effective Date, each Subsidiary of Holdings listed on Part A of Schedule XIII
and (ii) after the Restatement Effective Date, any Subsidiary of the U.S.
Borrower that is not at such time a Subsidiary Guarantor.
"Non-Qualified Jurisdiction" at any time shall mean each jurisdiction
that is not at such time a Qualified Jurisdiction.
"Non-U.S. ββββ Group" shall mean the Consolidated Subsidiaries of the
U.S. Borrower which are not members of the U.S. ββββ Group.
"Non-Wholly Owned Subsidiary" shall mean, as to any Person, each
Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.
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"Note" shall mean each Tranche B Term Note, each Tranche C Term Note
and each Incremental Term Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at ββ ββββ ββββββ, βββ ββββ, βββ ββββ βββββ or such other office as the
Administrative Agent may designate to Holdings and the Lenders from time to
time.
"Obligation Currency" shall have the meaning provided in Section
13.22(a).
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any Agent, the Collateral Agent, any Issuing-Lender, any Bank Guaranty Issuer or
any Lender pursuant to the terms of this Agreement or any other Credit Document.
"Original Agent" shall mean each "Agent" under, and as defined in, the
Original Credit Agreement.
"Original Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Original Effective Date" shall mean the Restatement Effective Date
under, and as defined in, the Original Credit Agreement.
"Original Lenders" shall mean the Lenders under, and as defined in,
the Original Credit Agreement with outstanding Original Loans on the Restatement
Effective Date (immediately prior to giving effect thereto).
"Original Loan" shall mean each "Loan" under, and as defined in, the
Original Credit Agreement.
"Original Required Lenders" shall mean the "Required Lenders" under,
and as defined in, the Original Credit Agreement.
"Original Revolving Loan" shall mean a "Revolving Loan" under, and as
defined in, the Original Credit Agreement.
"Original U.S. Security Agreement" shall mean the "U.S. Security
Agreement" under, and as defined in, the Original Credit Agreement.
"Original Swingline Loan" shall mean a "Swingline Loan" under, and as
defined in, the Original Credit Agreement.
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"Original Tranche B Term Loan" shall mean a "Tranche B Term Loan"
under, and as defined in, the Original Credit Agreement.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Parent Business Condition" shall mean, for any quarterly accounting
period or Fiscal Year, (A) Holdings having at all times during such period (i)
owned no significant assets (other than (w) the proceeds of the Wellbeing
Project Financing, (x) the Equity Interests of Intermediate Holdco (y)
Intercompany Notes evidencing intercompany loans permitted to be made by it
pursuant to Section 9.05 and (z) the Equity Interests of the Unrestricted
Wellbeing Joint Ventures, Westlake Wellbeing Company LLC and The California
Wellbeing Institute, LLC), (ii) had no liabilities or Indebtedness (other than
those liabilities and Indebtedness permitted by Section 9.01(b)) and (iii)
otherwise complied with the requirements of Section 9.01(b), (B) Intermediate
Holdco having at all times during such period (i) owned no significant assets
(other than the capital stock of the U.S. Borrower and Corporate Holdco and
Intercompany Notes evidencing intercompany loans permitted to be made by it
pursuant to Section 9.05) and had no liabilities or Indebtedness (other than
those liabilities and Indebtedness permitted by Section 9.01(j)) and (ii)
otherwise complied with the requirements of Section 9.01(j) and (C) Corporate
Holdco having at all times during such period (i) owned no significant assets
and had no liabilities or Indebtedness (other than those liabilities and
Indebtedness permitted by Section 9.01(k)) and (ii) otherwise complied with the
requirements of Section 9.01(k).
"Participating Member State" shall mean, at any time, any member state
of the European Union which has adopted the Euro as its lawful currency at such
time.
"Payment Office" shall mean the office of the Administrative Agent
located at ββ ββββ ββββββ, βββ ββββ, βββ ββββ βββββ or such other office as the
Administrative Agent may hereafter designate in writing to Holdings and the
Lenders from time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(b)(vi).
"Permitted Acquisition" shall mean the acquisition by the U.S.
Borrower or any of its Wholly-Owned Subsidiaries of assets constituting a
business, division or product line of any Person, not already a Subsidiary of
the U.S. Borrower or any of its Wholly-Owned Subsidiaries, or of 100% of the
capital stock or other Equity Interests of any such Person, which Person shall,
as a result of such acquisition, become a Wholly-Owned Subsidiary of the U.S.
Borrower or such Wholly-Owned Subsidiary, provided that (A) the consideration
paid by the U.S. Borrower or such Wholly-Owned Subsidiary consists solely of
cash (including proceeds of ABL Loans), the issuance of Holdings Common Stock,
the issuance of Qualified Preferred Stock, the incurrence of Indebtedness
otherwise permitted pursuant to Section 9.04 and the
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assumption/acquisition of any Permitted Acquired Debt relating to such business,
division, product line or Person which is permitted to remain outstanding in
accordance with the requirements of Section 9.04, (B) in the case of the
acquisition of 100% of the capital stock or other Equity Interests of any
Acquired Entity or Business, such Acquired Entity or Business shall own no
capital stock or other Equity Interests of any other Person unless either (x)
the Acquired Entity or Business owns 100% of the capital stock or other Equity
Interests of such other Person or (y) if the Acquired Entity or Business owns
capital stock or Equity Interests in any other Person which is a Non-Wholly
Owned Subsidiary of the Acquired Entity or Business, (1) the Acquired Entity or
Business shall not have been created or established in contemplation of, or for
purposes of, the respective Permitted Acquisition, (2) such Non-Wholly Owned
Subsidiary of the Acquired Entity or Business shall have been a Non-Wholly Owned
Subsidiary of the Acquired Entity or Business prior to the date of the
respective Permitted Acquisition and not created or established in contemplation
thereof and (3) the Acquired Entity or Business and/or its Wholly-Owned
Subsidiaries own at least 80% of the total value of all the assets owned by such
Acquired Entity or Business and its subsidiaries (for purposes of such
determination, excluding the value of the Equity Interests of Non-Wholly Owned
Subsidiaries held by such Acquired Entity or Business and its Wholly-Owned
Subsidiaries), (C) the Acquired Entity or Business shall be a Permitted Business
and (D) all applicable requirements of Sections 8.11, 8.15 and 9.02 applicable
to Permitted Acquisitions are satisfied. Notwithstanding anything to the
contrary contained in the immediately preceding sentence, an acquisition which
does not otherwise meet the requirements set forth above in the definition of
"Permitted Acquisition" shall constitute a Permitted Acquisition if, and to the
extent, the Required Lenders agree in writing that such acquisition shall
constitute a Permitted Acquisition for purposes of this Agreement.
"Permitted Business" shall mean any business which (i) is the same,
similar, ancillary or reasonably related to the business in which Holdings or
any of its Subsidiaries is engaged on the Original Effective Date or (ii) is
conducted by an Acquired Entity or Business acquired pursuant to a Permitted
Acquisition and which does not qualify as a "Permitted Business" pursuant to
preceding clause (i), so long as (x) such business represents an immaterial
portion of the businesses acquired pursuant to such Permitted Acquisition and
(y) such business is sold or otherwise disposed of as soon as reasonably
practicable following the consummation of such Permitted Acquisition (but, in
any event, within one year following such Permitted Acquisition).
"Permitted Encumbrances" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the Mortgage Policy
delivered with respect thereto, all of which exceptions must be acceptable to
the Administrative Agent in its reasonable discretion.
"Permitted Holders" shall mean βββββ β. βββββββ, a Qualified Trust and
any majority-owned and controlled Affiliate of βββββ β. βββββββ or a Qualified
Trust.
"Permitted Indebtedness" shall have the meaning provided in Section
9.04(b).
"Permitted Installment Note" shall mean a promissory note issued as
consideration to the U.S. Borrower or any of its Subsidiaries in connection with
a Contemplated Asset Sale, which note (i) shall be secured by the assets subject
to the respective Contemplated Asset Sale and (ii) in the case of a Contemplated
Asset Sale made by a Credit Party, shall be
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pledged to the Collateral Agent pursuant to the relevant Security Documents;
provided that no such note may be issued in connection with a Contemplated Asset
Sale if the aggregate principal amount of such note, when added to the aggregate
outstanding principal amount of all other Permitted Installment Notes
theretofore issued (without regard to any write-downs or write-offs thereof),
would exceed $35,000,000.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Refinancing Indebtedness" shall mean any Indebtedness of
the U.S. Borrower and its Subsidiaries issued or given in exchange for, or the
proceeds of which are used to, extend, refinance, renew, replace or refund any
Scheduled Existing Indebtedness, Permitted Acquired Debt or any Indebtedness
issued to so extend, refinance, renew, replace, substitute or refund any such
Indebtedness, so long as (a) such Indebtedness has a weighted average life to
maturity greater than or equal to the weighted average life to maturity of the
Indebtedness being extended, refinanced, renewed, replaced or refunded, (b) such
extension, refinancing, renewal, replacement or refunding does not (i) increase
the amount of such Indebtedness outstanding immediately prior to such extension,
refinancing, renewal, replacement or refunding (except to the extent of
reasonable fees, premiums, commissions and expenses actually paid in connection
with such extension, refinancing, renewal, replacement or refunding) or (ii) add
guarantors, obligors or security from that which applied to such Indebtedness
being extended, refinanced, renewed, replacement or refunding, (c) such
Indebtedness has the same (or, from the perspective of the Lenders, more
favorable) subordination provisions, if any, as applied to the Indebtedness
being extended, renewed, refinanced, replaced or refunded, and (d) all other
terms of such extension, refinancing, renewal, replacement or refunding
(including, without limitation, with respect to the amortization schedules,
redemption provisions, maturities, covenants, defaults and remedies, but
excluding interest rates so long as on market terms at the time of issuance
thereof) are not less favorable in any material respect to the respective
borrower than those previously existing with respect to the Indebtedness being
extended, refinanced, renewed, replaced or refunded, provided, however, that any
Intercompany Scheduled Existing Indebtedness (and subsequent extensions,
refinancings, renewals, replacements and refundings thereof as provided above in
this definition) may only be extended, refinanced, renewed, replaced or refunded
as provided above in this definition if the Indebtedness so extended,
refinanced, renewed, replaced or refunded has the same obligors(s) and
obligee(s) as the Indebtedness being extended, refinanced, renewed, replaced or
refunded.
"Permitted Refinancing Senior Notes" shall mean any Indebtedness of
the U.S. Borrower evidenced by senior notes issued or given in exchange for, or
the proceeds of which are used to, refinance, renew, replace or refund any
Existing Senior Notes, any Permitted Senior Notes or any Indebtedness issued to
so refinance, renew, replace or refund any such Indebtedness, so long as (a)
such Indebtedness has a final maturity no earlier than the date occurring 180
days following the then latest Maturity Date and no required amortizations prior
to such date, (b) such Indebtedness does not (i) increase the amount of such
Indebtedness outstanding immediately prior to such refinancing or renewal
(except to the extent of reasonable fees, premiums, commissions and expenses
actually paid in connection with such refinancing, renewal, replacement or
refunding) or (ii) add guarantors, obligors or security from that which applies
to the Indebtedness being refinanced, renewed, replaced or refunded, (c) the
guaranties of such senior notes shall be subject to the same (or, from the
perspective of the Lenders, more
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favorable) subordination provisions as applied to the guaranties of the Existing
2011 Senior Notes, (d) if the U.S. Borrower elects to provide for the
subordination of the obligations of the U.S. Borrower under such senior notes to
the prior payment in full of "senior debt" (or, the Indebtedness being
refinanced, renewed, replaced or refunded includes subordination provisions
applicable to the U.S. Borrower), such senior notes shall be subject to the same
subordination provisions as are applicable to the guaranties of such senior
notes (subject only to appropriate conforming changes), (e) all other terms of
such Indebtedness (including, without limitation, with respect to the
amortization, redemption provisions, maturities, covenants, defaults and
remedies), are not, taken as a whole, less favorable in any material respect to
the U.S. Borrower and its Subsidiaries than those previously existing with
respect to the Indebtedness being refinanced, renewed, replaced or refunded, and
(f) the documentation governing such Indebtedness is in form and substance
reasonably satisfactory to the Administrative Agent, as such Indebtedness is in
effect on the date of incurrence thereof and as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Permitted Refinancing Senior Notes Documents" shall mean any
indenture entered into in connection with any issuance of Permitted Refinancing
Senior Notes and each other agreement, document or instrument relating to any
issuance of Permitted Refinancing Senior Notes, as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Permitted Senior Notes" shall mean any Indebtedness of the U.S.
Borrower evidenced by senior notes 100% of the Net Cash Proceeds of which are
promptly applied to finance a Permitted Acquisition effected in accordance with
the requirements of Section 8.15 and the fees and expenses incurred in
connection therewith, so long as (a) such Indebtedness has a final maturity no
earlier than the date occurring 180 days following the then latest Maturity Date
and no required amortizations prior to such date, (b) such Indebtedness does not
add guarantors, obligors or security from that which applies to the Existing
2011 Senior Notes, (c) the guaranties of such senior notes shall be subject to
the same (or, from the perspective of the Lenders, more favorable) subordination
provisions as applied to the guaranties of the Existing 2011 Senior Notes, (d)
if the U.S. Borrower elects to provide for the subordination of the obligations
of the U.S. Borrower under such senior notes to the prior payment in full of
"senior debt," such senior notes shall be subject to the same subordination
provisions as are applicable to the guaranties of such senior notes (subject
only to appropriate conforming changes), (e) all other terms of such
Indebtedness (including, without limitation, with respect to amortization,
redemption provisions, maturities, covenants, defaults and remedies, but
excluding interest rates so long as on market terms at the time of the issuance
thereof), are not, taken as a whole, less favorable in any material respect to
the U.S. Borrower and its Subsidiaries than those previously existing with
respect to the Existing 2011 Senior Notes, (f) on the date of issuance of any
such Indebtedness, the U.S. Borrower and its Subsidiaries shall have complied
with the requirements of Section 8.15 with respect to the Permitted Acquisition
to be financed with the proceeds of such Indebtedness (including the delivery of
the officers' certificate required by Section 8.15(a)(x) and the calculations
required by Section 8.15(a)(iii) (after giving pro forma effect to the issuance
of such Indebtedness) and (g) the documentation governing such Indebtedness is
in form and substance reasonably satisfactory to the Administrative Agent, as
such Indebtedness may be amended,
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modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Permitted Senior Notes Documents" shall mean any Permitted Senior
Note, any Permitted Senior Notes Indenture and all other documents executed and
delivered with respect to an issuance of Permitted Senior Notes or a Permitted
Senior Notes Indenture, as the same may be amended, modified and/or supplemented
from time to time in accordance with the terms hereof and thereof.
"Permitted Senior Notes Indenture" shall mean any indenture entered
into in connection with any issuance of Permitted Senior Notes, as the same may
be amended, modified and/or supplemented from time to time in accordance with
the terms hereof and thereof.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA
(other than a Multiemployer Plan), which is maintained or contributed to by (or
to which there is an obligation to contribute of) Holdings or a Subsidiary of
Holdings or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Holdings, or a Subsidiary of
Holdings or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement Collateral" shall mean all U.S. Pledge Agreement
Collateral and all other Equity Interests or other property similar to that
pledged pursuant to the U.S. Pledge Agreement which is pledged pursuant to one
or more Foreign Pledge Agreements, Foreign Security Agreements or Additional
Security Documents.
"Pledge Agreements" shall mean the U.S. Pledge Agreement and each
Foreign Pledge Agreement.
"Preferred Equity," as applied to the Equity Interests of any Person,
means Equity Interests of such Person (other than common stock of such Person)
of any class or classes (however designed) that ranks prior, as to the payment
of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to Equity
Interests of any other class of such Person.
"Prime Lending Rate" shall mean the rate which DBAG (or another bank
of recognized standing reasonably selected by the Administrative Agent)
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. DBAG may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Principal Property" shall mean "Principal Property", as defined in
the Existing 2011 Senior Notes Indenture (as in effect (and as each component
definition used therein is in effect) on the Original Effective Date, without
giving effect to any termination thereof).
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"Pro Forma Basis" shall mean, in connection with any calculation of
the Total Leverage Ratio or Senior Secured Leverage Ratio, the calculation of
Consolidated EBITDA as used therein after giving effect on a pro forma basis to
any Permitted Acquisition or Significant Asset Sale then being consummated as
well as any other Permitted Acquisition or Significant Asset Sale consummated
after the first day of the relevant Test Period or Calculation Period, as the
case may be, and on or prior to the date of the required determination of the
Total Leverage Ratio and/or Senior Secured Leverage Ratio, as the case may be,
as if same had occurred on the first day of the respective Test Period or
Calculation Period, as the case may be, taking into account, in the case of any
Permitted Acquisition, factually supportable and identifiable cost savings and
expenses which would otherwise be accounted for as an adjustment pursuant to
Article 11 of Regulation S-X under the Securities Act, as if such cost savings
or expenses were realized on the first day of the respective period.
"Pro Forma Financial Statements" shall have the meaning provided in
Section 5.15(a).
"Projections" shall have the meaning provided in Section 5.15(b).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible or mixed, of such Person, or other assets owned,
leased, or operated by such Person.
"Qualified Jurisdictions" shall mean and include the United States,
Bermuda and each other jurisdiction identified on Schedule XVII hereto, in each
case including any states, provinces or other similar local units therein.
Furthermore, from time to time after the Restatement Effective Date, Holdings
may request (by written notice to, and following consultation with, the
Administrative Agent) that one or more additional jurisdictions be added to the
list of Qualified Jurisdictions. In such event, such jurisdictions shall be
added to (and thereafter form part of) the list of Qualified Jurisdictions so
long as, in each case, the respective jurisdiction to be added is a jurisdiction
in which the U.S. Borrower and/or any of its Subsidiaries conducts business on
the Restatement Effective Date or is otherwise reasonably satisfactory to the
Administrative Agent and so long as Holdings has furnished opinions of counsel,
in each case from counsel, and in form and substance, reasonably satisfactory to
the Administrative Agent, concluding that Subsidiaries of the U.S. Borrower
organized under the laws of such jurisdiction may execute and deliver a Foreign
Subsidiaries Guaranty (unlimited in amount and otherwise containing provisions
reasonably consistent with the provisions of the Foreign Subsidiaries Guaranty
executed and delivered on the Initial Borrowing Date and applicable to a
Qualified Non-U.S. Obligor on such date), the Intercompany Subordination
Agreement and such Security Documents as may be satisfactory to the Collateral
Agent (generally consistent with the Security Documents executed and delivered
by Qualified Non-U.S. Obligors (determined without regard to the proviso to the
definition thereof contained herein) on the Restatement Effective Date) and
that, in accordance with the laws of the respective jurisdiction, such Credit
Documents shall constitute the legal, valid and binding obligations, enforceable
in accordance with their terms, and (in the case of the Security Documents)
create valid and perfected security interests under applicable law (in each case
subject to such customary exceptions (not inconsistent with the requirements set
forth above) as are satisfactory to the Administrative Agent). The parties
hereto further agree that, in the
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discretion of the Administrative Agent, as a condition to the addition of any
jurisdiction to the list of Qualified Jurisdictions, the Administrative Agent
may (but shall not be required to) request the consent of the Required Lenders
to such addition and, in such event, the Administrative Agent shall be entitled
to wait for such consent before adding the respective jurisdiction to the list
of Qualified Jurisdictions.
"Qualified Non-U.S. Jurisdictions" shall mean and include each
Qualified Jurisdiction other than the United States (and the States thereof).
"Qualified Non-U.S. Obligors" shall mean each Foreign Credit Party
which (x) is a Wholly-Owned Subsidiary of Holdings organized under the laws of a
Qualified Non-U.S. Jurisdiction, (y) has provided a full and unconditional
guaranty (unlimited in amount) of all Guaranteed Obligations (as defined in the
Foreign Subsidiaries Guaranty) pursuant to a Foreign Subsidiaries Guaranty and
(z) has executed the relevant Security Documents in accordance with the
requirements of Sections 5, 8.11 and/or 9.14 of the Original Credit Agreement or
Sections 5, 8.11 and/or 9.11 hereof securing all such Guaranteed Obligations,
provided that (i) any Fee Capped Foreign Subsidiary Guarantor shall be deemed to
be a Qualified Non-U.S. Obligor for purposes of Sections 9.02(viii), (ix) and
(xi) and Sections 9.05(vi) and (viii) only (and only said Sections), so long as
such Fee Capped Foreign Subsidiary Guarantor shall at all times be in compliance
with the requirements of Section 8.11(i), (ii) any Fee Capped Foreign Subsidiary
Guarantor shall be deemed to be a Qualified Non-U.S. Obligor for purposes of
Section 8.18(c), so long as (I) governmental approvals are required to be
obtained to transfer the Equity Interests of such Fee Capped Foreign Subsidiary
Guarantor to a Qualified Non-U.S. Obligor (determined without regard clauses
(i), (ii), (iii) and (iv) of this proviso) and the U.S. Borrower or such
Subsidiary Guarantor is using reasonable efforts to obtain such approvals or
(II) the transfer of the Equity Interests of such Fee Capped Foreign Subsidiary
Guarantor to a Qualified Non-U.S. Obligor (determined without regard clauses
(i), (ii), (iii) and (iv) of this proviso) would give rise to material and
adverse tax consequences to the U.S. Borrower or such Subsidiary, (iii) ββββ
Korea, Ltd. shall be deemed to be a Qualified Non-U.S. Obligor for purposes of
Sections 8.18(c) and 9.01(c) (and only said Sections), (iv) notwithstanding the
provision of a limited guaranty by the Excluded Bermuda Insurance Companies,
each of the Excluded Bermuda Insurance Companies shall be deemed to be a
"Qualified Non-U.S. Obligor" for all purposes of this Agreement (other than
Sections 8.18(c) and 9.01(c) for which it is understood such Persons shall not
constitute "Qualified Non-U.S. Obligors") and (v) any Qualified Non-U.S. Obligor
(including any deemed as such pursuant to preceding clauses (i), (ii), (iii) and
(iv)) shall cease to constitute same at such time, if any, as such Person ceases
to be a Wholly-Owned Subsidiary of Holdings.
"Qualified Obligors" shall mean each Qualified U.S. Obligor and each
Qualified Non-U.S. Obligor.
"Qualified Preferred Stock" shall mean any Preferred Equity of
Holdings, the express terms of which shall provide that dividends thereon shall
not be required to be paid at any time (and to the extent) that such payment
would be prohibited by the terms of this Agreement or any other agreement of
Holdings or any of its Subsidiaries relating to outstanding indebtedness and
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(including any change of
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control event), cannot mature (excluding any maturity as the result of an
optional redemption by the issuer thereof) and is not mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, and is not redeemable, or
required to be repurchased, at the sole option of the holder thereof (including,
without limitation, upon the occurrence of an change of control event), in whole
or in part, on or prior to 3 months following the maturity date of the Existing
2013 Senior Notes.
"Qualified Trust" shall mean the βββββ β. βββββββ Living Trust, dated
May 28, 1986, as amended, or another trust established by ββ. βββββββ to hold
and control the capital stock of Holdings and the remainder of his estate in the
event of his death, so long as any such trust described above (i) is at all
times controlled by βββββ β. βββββββ or by a majority of experienced business
persons and is not controlled by members of ββ. βββββββ'β family and (ii) holds
all or substantially all of the assets of ββ. βββββββ.
"Qualified U.S. Obligors" shall mean and include Holdings and each
other U.S. Credit Party which is a Wholly-Owned Subsidiary of Holdings, provided
that any Qualified U.S. Obligor that is (or was) a Subsidiary of Holdings shall
cease to constitute a Qualified U.S. Obligor at such time, if any, as such
Subsidiary ceases to be a Wholly-Owned Subsidiary of Holdings.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Rabobank" shall mean the Rabobank International in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by Holdings or any of its
Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of
theft, physical destruction or damage or any other similar event with respect to
any properties or assets of Holdings or any of its Subsidiaries, (ii) by reason
of any condemnation, taking, seizing or similar event with respect to any
properties or assets of Holdings or any of its Subsidiaries and (iii) under any
policy of insurance required to be maintained under Section 8.03.
"Refinancing" shall mean the Intermediate Holdco Refinancing and the
other refinancing transactions contemplated by Section 5.08.
"Refinancing Documents" shall mean shall mean the documents,
instruments and agreements entered into connection with the Refinancing.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Relevant Guaranteed Obligations" shall mean (i) in the case of each
Holdings and Intermediate Holdco, (x) the principal and interest on each Note
issued to each Lender, and all Loans made, under this Agreement, all
reimbursement obligations and Unpaid Drawings with respect to Letters of Credit
and all reimbursement obligations and Unreimbursed Payments with respect to Bank
Guaranties, together with all the other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) and liabilities (including, without limitation, indemnities,
fees and interest thereon) of the Borrowers (or either of them) to each Lender,
each Agent, each Issuing Lender, each Bank Guaranty Issuer and the Collateral
Agent now existing or hereafter incurred under, arising out of or in connection
with this Agreement and each other Credit Document and the due performance and
compliance by each Borrower with all the terms, conditions and agreements
contained in this Agreement and each other Credit Document to which it is a
party and (y) all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities of the U.S. Borrower or any of its Subsidiaries owing under any
Interest Rate Protection Agreement or Other Hedging Agreement entered into by
the U.S. Borrower or any of its Subsidiaries with any Secured Hedge Counterparty
so long as such Secured Hedge Counterparty participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein, (ii)
in the case of the U.S. Borrower, (x) the principal and interest on each Tranche
C Term Note and each Incremental Term Note (in each case) issued by the Bermuda
Borrower to each Lender, and each Tranche C Term Loan and each Bermuda Borrower
Incremental Term Loan made, under this Agreement, all reimbursement obligations
and Unpaid Drawings with respect to each Letter of Credit issued for the account
of the Bermuda Borrower and all reimbursement obligations and Unreimbursed
Payments with respect to each Bermuda Borrower Bank Guaranty, together with all
the other obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of the
Bermuda Borrower to each Lender, each Agent, each Issuing Lender, each Bank
Guaranty Issuer and the Collateral Agent now existing or hereafter incurred
under, arising out of or in connection with this Agreement or any other Credit
Document and the due performance and compliance by the Bermuda Borrower with all
the terms, conditions and agreements contained in the Credit
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Documents to which it is a party and (y) all obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) and liabilities of the Bermuda Borrower or any other
Subsidiary of the Bermuda Borrower owing under any Interest Rate Protection
Agreement and any Other Hedging Agreement entered into by the Bermuda Borrower
or any other Subsidiary of the U.S. Borrower with any Secured Hedge Counterparty
so long as such Secured Hedge Counterparty participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein and
(iii) in the case of the Bermuda Borrower, all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of any Foreign Subsidiary of
the U.S. Borrower (other than the Bermuda Borrower) owing under any Interest
Rate Protection Agreement and any Other Hedging Agreement entered into by any
such Foreign Subsidiary of the U.S. Borrower with any Secured Hedge Counterparty
so long as such Secured Hedge Counterparty participates in such Interest Rate
Protection Agreement or Other Hedging Agreement, and their subsequent assigns,
if any, whether now in existence or hereafter arising, and the due performance
and compliance with all terms, conditions and agreements contained therein.
"Relevant Guaranteed Party" shall mean (i) with respect to Holdings,
each Borrower and each Subsidiary of Holdings party to any Interest Rate
Protection Agreement or Other Hedging Agreement with any Secured Creditor, (ii)
with respect to Intermediate Holdco, each Borrower and each Subsidiary of
Intermediate Holdco party to any Interest Rate Protection Agreement or Other
Hedging Agreement with any Secured Creditor, (iii) with respect to the U.S.
Borrower, the Bermuda Borrower and each Subsidiary of Holdings (other than the
U.S. Borrower) party to any Interest Rate Protection Agreement or Other Hedging
Agreement with any Secured Creditor and (iv) with respect to the Bermuda
Borrower, each Foreign Subsidiary of Holdings (other than the Bermuda Borrower)
party to any Interest Rate Protection Agreement or Other Hedging Agreement with
any Secured Creditor.
"Relevant Separate Tax Liability" shall have the meaning provided in
Section 9.06(v).
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Foreign Security Agreements" shall have the meaning
provided in Section 5.12(b).
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Repricing Transaction" shall mean, as to any Tranche, (1) the
incurrence by the U.S. Borrower or any of its Subsidiaries of any indebtedness
(including, without limitation, any
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new or additional loans, letters of credit, bank guaranties and/or credit-linked
deposits under this Agreement, whether incurred directly or by way of the
conversion of outstanding Term Loans and/or Credit-Linked Deposits (and related
Letters of Credit and/or Bank Guaranties), as the case may be, of any such
Tranche into a new tranche of replacement term loans, letters of credit, bank
guaranties and/or credit-linked deposits under this Agreement) that is broadly
marketed or syndicated to banks and other institutional investors in financings
similar to the facilities provided for in this Agreement (i) having an
"effective" interest rate margin or weighted average yield for the respective
type of such indebtedness or extension of credit that is less than the
applicable rate for or weighted average yield for (x) Term Loans of the
respective Tranche and Type and/or (y) Credit-Linked Deposits (and related
Letters of Credit and/or Bank Guaranties) of the CL Tranche, as the case may be
(with the comparative determinations to be made by the Administrative Agent
consistent with generally accepted financial practices, after giving effect to,
among other factors, margin, upfront or similar fees or "original issue
discount" shared with all lenders or holders of such indebtedness or other
extensions of credit, as the case may be, but excluding the effect of any
arrangement, structuring, syndication or other fees payable in connection
therewith that are not shared with all lenders or holders of such indebtedness
or other extensions of credit, as the case may be, and without taking into
account any fluctuations in the relevant Eurodollar Rate) and (ii) the proceeds
of which are used to prepay or replace (or, in the case of a conversion, deemed
to prepay or replace), in whole or in part, principal (or its equivalent) of
outstanding Term Loans of such Tranche and/or Credit-Linked Deposits (and
related Letters of Credit and/or Bank Guaranties) and (2) any reduction in the
Applicable Margins for Term Loans and/or the CL Facility Fee for Credit-Linked
Deposits, as the case may be, of such Tranche by way of the amendment, waiver or
other modification of this Agreement. Any such determination by the
Administrative Agent as contemplated by preceding clause (1) shall be conclusive
and binding on all Lenders holding Term Loans and/or Credit-Linked Deposits (and
related Letters of Credit and/or Bank Guaranties).
"Required Appraisal" shall have the meaning provided in Section
8.11(j).
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding principal of Term Loans (or, if prior to the occurrence of the
Credit Events on the Restatement Effective Date, the sum of whose "Converted
Tranche C Term Loans" amounts as shown on Schedule I and Tranche B Term Loan
Commitments and Tranche C Term Loan Commitments) and Credit-Linked Commitments
(or after the termination thereof, outstanding Individual CL Exposures) as of
any date of determination represent greater than 50% of the sum of all
outstanding principal of Term Loans (or if prior to the occurrence of the Credit
Events on the Restatement Effective Date, the sum of all "Converted Tranche C
Term Loans" amounts as shown on Schedule I and Tranche B Term Loan Commitments
and Tranche C Term Loans Commitments) of Non-Defaulting Lenders at such time and
the sum of all Credit-Linked Commitments of all Non-Defaulting Lenders at such
time (or, after the termination thereof, the sum of the then total Individual CL
Exposures of all Non-Defaulting Lenders at such time); provided that, for
purposes of this definition, at any time after the Restatement Effective Date,
(I) a Voting Participant shall be deemed to be a "Lender" holding the portion of
the Credit-Linked Commitment (or, after the termination thereof, outstanding
Individual CL Exposure), the Incremental Term Loan Commitment and the
outstanding Term Loans of any Lender (other than a Defaulting Lender) in which
it purchased a participation from such Lender (and to have the voting rights of
such Lender with respect to each such Tranche) and (II) a Lender (other than a
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Defaulting Lender) which has sold a participation in a portion of its
Credit-Linked Commitment (and related Obligations), Incremental Term Loan
Commitment or outstanding Term Loans to a Voting Participant shall be deemed to
hold a Credit-Linked Commitment (or, after the termination thereof, outstanding
Individual CL Exposure), Incremental Term Loan Commitment or outstanding Term
Loans, as the case may be, in each case, as reduced by the amount of the
participations therein sold to a Voting Participant.
"Restatement Effective Date" shall have the meaning provided in
Section 13.10.
"Restricted Subsidiary" of any Person shall mean any Subsidiary (as
defined in the Existing 2011 Senior Notes Indenture as in effect on the
Restatement Effective Date (without giving effect to any termination thereof))
of such Person other than any Subsidiary (as so defined) of such Person that is
engaged primarily in the management, development and sale or financing of real
property.
"Retained Excess Cash Flow Amount" shall initially be $0, which amount
shall be (A) increased on each Excess Cash Payment Date so long as any repayment
required pursuant to Section 4.02(f) has been made, by an amount equal to the
Adjusted Excess Cash Flow for the immediately preceding Excess Cash Flow Payment
Period multiplied by a percentage equal to 100% minus the Applicable Prepayment
Percentage, and (B) reduced (i) on each Excess Cash Payment Date where Adjusted
Excess Cash Flow for the immediately preceding Excess Cash Flow Payment Period
is a negative number, by such amount, and (ii) at the time any cash is used to
redeem, repurchase and/or otherwise make payments in respect of Existing Senior
Notes, Permitted Senior Notes and/or Permitted Refinancing Senior Notes in
reliance on Section 9.06(xiii), by the amount of the cash so used (it being
understood that the Retained Excess Cash Flow Amount may be reduced to an amount
below zero after giving effect to the reductions enumerated in clause (B)
above).
"Returns" shall have the meaning provided in Section 7.20.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Sale-Leaseback Transaction" shall have the meaning provided in the
Original Credit Agreement.
"Sale-Leaseback Transaction Documents" shall mean all documents and
agreements delivered in connection with the Sale-Leaseback Transaction, in each
case as the same may be amended, modified and/or supplemented from time to time
in accordance with the terms hereof and thereof.
"Scheduled Existing Indebtedness" shall mean Third Party Scheduled
Existing Indebtedness and Intercompany Scheduled Existing Indebtedness.
"Scheduled Investment Termination Date" shall mean, when referring to
the Credit-Linked Deposits on deposit in the Credit-Linked Deposit Account, the
date agreed to by the Borrowers and the Administrative Agent from time to time,
provided that if no such
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agreement shall be reached, the Scheduled Investment Termination Date shall be
the last day of the then current Interest Period applicable to the Credit-Linked
Deposits.
"Scheduled Repayment" shall mean any Tranche B Term Loan Scheduled
Repayment, any Tranche C Term Loan Scheduled Repayment and/or any Incremental
Term Loan Scheduled Repayment of any Tranche, as the context may require.
"Scotia Capital" shall mean The Bank of Nova Scotia, in its individual
capacity, and any successor corporation thereto by merger, consolidation or
otherwise.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second Priority" means, with respect to any Lien purported to be
created on any Collateral pursuant to the U.S. Security Documents, that such
Lien is prior in right to any other Lien thereon, other than (x) Liens permitted
pursuant to clause (y) of Section 9.03(iii) and (y) Permitted Liens permitted to
be prior to the Liens on the Collateral in accordance with the definition "First
Priority" contained herein; provided that in no event shall any such Permitted
Lien be permitted (on a consensual basis) to be junior and subordinate to any
Permitted Liens as described in clause (x) above and senior in priority to the
relevant Liens created pursuant to the U.S. Security Documents.
"Second-Tier Material Real Property" of any Person, shall mean any
fee-owned (or equivalent) Real Property acquired by such Person after the
Initial Borrowing Date with a value (determined using the initial purchase price
paid by such Person for such Real Property) of greater than $2,500,000 but less
than or equal to $10,000,000.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
"Secured Hedge Counterparties" shall mean, with respect to any
Interest Rate Protection Agreement or Other Hedging Agreement, (x) any Lender or
any affiliate thereof (even if such Lender subsequently ceases to be a Lender
under this Agreement for any reason), (y) any ABL Lender or any affiliate
thereof (even if such ABL Lender ceases to be a Lender under the ABL Credit
Agreement for any reason) or (z) to the extent any such Interest Rate Protection
Agreement or Other Hedging Agreement was entered into prior to the Restatement
Effective Date, any Original Lender or any affiliate thereof (even if such
Original Lender ceased to be an Original Lender under the Original Credit
Agreement for any reason).
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement Collateral" shall mean all collateral in which any
security interest is granted pursuant to the Security Agreements.
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"Security Agreements" shall mean the U.S. Security Agreement and each
Foreign Security Agreement.
"Security Documents" shall mean and include each of the U.S. Security
Agreement, the U.S. Pledge Agreement, each Mortgage, each Foreign Security
Agreement, each Foreign Pledge Agreement and, after the execution and delivery
thereof, each Additional Security Document (including each Additional Mortgage).
"Senior Secured Leverage Ratio" shall mean, on any date of
determination, the ratio of (i) Consolidated Senior Secured Net Debt on such
date to (ii) Consolidated EBITDA for the Test Period most recently ended on or
prior to such date; provided that for all purposes of this Agreement,
Consolidated EBITDA for purposes of the Senior Secured Leverage Ratio shall be
determined on a Pro Forma Basis.
"Senior Officer" shall mean (i) senior executive management of
Holdings and the U.S. Borrower, (ii) the general counsel of Holdings and the
U.S. Borrower and (iii) the division presidents of Holdings and its
Subsidiaries.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by Holdings (and not guaranteed or supported in any way
by either Borrower or any of their respective Subsidiaries) in the form of
Exhibit L, as the same may be amended, modified and/or supplemented from time to
time in accordance with the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning provided in Section
5.13(i).
"Sharing Event" shall mean (i) the occurrence of any Event of Default
with respect to any Credit Agreement Party pursuant to Section 10.05, (ii) the
declaration of the termination of any Credit-Linked Commitment or Incremental
Term Loan Commitment, or the acceleration of the maturity of any Loans, in each
case pursuant to the last paragraph of Section 10 or (iii) the failure of either
Borrower to pay any principal of, or interest on, Loans of any Tranche, any
Letter of Credit Outstandings or any Bank Guaranty Outstandings on the relevant
Maturity Date.
"Shell Corporation" shall mean any Person created or established by
the U.S. Borrower or any of its Wholly-Owned Subsidiaries, so long as (i) the
aggregate amount of assets at any time held by any such Person does not exceed
$10,000 and (ii) the aggregate amount of assets at any time held by all Shell
Corporations at any time in existence does not exceed $100,000, it being
understood that at such time as the assets of any Person which was a "Shell
Corporation" exceed $10,000 or the assets of all Persons which were "Shell
Corporations" exceeds $100,000, all such Persons shall cease to be Shell
Corporations for purposes of this definition.
"Significant Asset Sale" shall mean each Asset Sale which generates
Net Sale Proceeds of at least $10,000,000.
"Special Colombian Put Note Agreement" shall mean that certain Put
Agreement, dated as of April 30, 2003, by and among the Bermuda Borrower, the
Administrative Agent, the Collateral Agent and the Colombian Subsidiary
Guarantors, pursuant to which the Collateral
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Agent and the Administrative Agent have the right to demand that the Colombian
Subsidiary Guarantors purchase (on a joint and several basis) any and all
Special Colombian Put Notes at par (plus accrued interest) and in U.S. Dollars,
as amended, modified and/or supplemented from time to time.
"Special Colombian Put Notes" shall have mean those certain promissory
notes, dated as of April 30, 2003, issued by the Bermuda Borrower in the form of
Exhibit M hereto, as amended, modified and/or supplemented from time to time.
"Specified Default" shall mean any Default under either of Sections
10.01 or 10.05.
"Specified Existing Ship Leases" shall mean the leases with respect to
the vessels named "ββββ Chile" and "Dole Colombia," as in effect on the Initial
Borrowing Date.
"Standby Letter of Credit" shall have the meaning provided in Section
2A.01(a).
"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met, but after giving
effect to all previous drawings made thereunder), provided that, (x) except as
such term is used in Section 2A.02, the "Stated Amount" of each Non-Dollar
Denominated Letter of Credit shall be, on any date of calculation, the Dollar
Equivalent of the maximum amount available to be drawn in such Alternative
Currency thereunder (determined without regard to whether any conditions to
drawing could then be met but after giving effect to all previous drawings made
thereunder) and (y) except for purposes of Sections 2A.02 and 3.01(b), the
definition of Non-Dollar Denominated L/C Cushion Amount and in determining the
respective proportional indemnification liabilities of the Secured Creditors to
the Collateral Agent and/or the Pledgee under the applicable Security Documents,
the Stated Amount of any Non-Dollar Denominated Letter of Credit (as otherwise
determined above) shall be increased (at each time the Stated Amount thereof is
determined) by Non-Dollar Denominated L/C Cushion Amount for such Non-Dollar
Denominated Letter of Credit.
"Sterling" and "L" shall mean freely transferable lawful money
of the United Kingdom (expressed in pounds sterling).
"Sterling Denominated Letter of Credit" shall mean each Letter of
Credit denominated in Sterling.
"Subsidiaries Guaranty" shall mean and include the U.S. Subsidiaries
Guaranty, the Foreign Subsidiaries Guaranty and any other guaranty executed and
delivered by any Subsidiary of the U.S. Borrower pursuant to any of Sections
8.11, 8.12 and/or 9.11.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through one or more Subsidiaries of such Person and (ii) any
partnership, association, limited
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liability company, joint venture or other entity (other than a corporation) in
which such Person directly or indirectly through one or more Subsidiaries of
such Person, has more than a 50% Equity Interest at the time. Notwithstanding
the foregoing (and except for purposes of Sections 7.01, 7.03, 7.04, 7.12, 7.16,
7.17, 7.20, 8.01(e), 8.01(g), 8.04, 8.05, 8.06, 8.07, 8.08, 8.16, 10.03(b),
10.04, 10.05, 10.06, 10.09 and 13.01), an Unrestricted Wellbeing Joint Venture
shall be deemed not to be a Subsidiary of Holdings or any of its other
Subsidiaries for purposes of this Agreement.
"Subsidiary Guarantor" shall mean each Subsidiary of Intermediate
Holdco that executes and delivers any Subsidiaries Guaranty, unless and until
such time as the respective Subsidiary is released from all of its obligations
under any relevant Subsidiaries Guaranty in accordance with the terms and
provisions thereof.
"Supermajority Lenders" of any Tranche shall mean those Non-Defaulting
Lenders which would constitute the Required Lenders under, and as defined in,
this Agreement if (x) all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto were
terminated and (y) the percentage "50%" contained therein were changed to
"66-2/3%."
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Syndication
Agent appointed pursuant to Section 12.10.
"Syndication Date" shall mean the earlier of (i) the 30th day
following the Restatement Effective Date and (ii) the date upon which the Agents
determine (and notify Holdings and the Lenders) that the primary syndication of
the Tranche B Term Loans, the Tranche C Term Loans and the CL Tranche (and
resultant addition of Persons as Lenders pursuant to Section 13.04(b)) has been
completed.
"Synthetic Lease" shall mean, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed), (i) that is not a capital lease in
accordance with U.S. GAAP and (ii) in respect of which the lessee retains or
obtains ownership of the property so leased for federal income tax purposes,
other than any such lease under which that Person is the lessor; provided that,
for purposes of this Agreement, the term "Synthetic Lease" shall not include the
lease arising pursuant to the Sale-Leaseback Transaction.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.13(iv).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan Conversion" shall have the meaning provided in Section
1.01(b).
"Term Loans" shall mean and include Tranche B Term Loans, Tranche C
Term Loans and each Incremental Term Loan.
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"Test Period" shall mean each period of four consecutive Fiscal
Quarters then last ended, in each case taken as one accounting period.
"Third Party Scheduled Existing Indebtedness" shall have the meaning
provided in Section 7.21.
"TL Priority Collateral" means all "TL Priority Collateral" as defined
in the Intercreditor Agreement.
"TL Repayment Percentage" of any Tranche of Term Loans at any time
shall be a fraction (expressed as a percentage) (x) the numerator of which is
the aggregate principal amount of outstanding Term Loans of such Tranche and (y)
the denominator of which is the sum of the aggregate principal amount of all
outstanding Term Loans at such time.
"Total Commitment" shall mean, at any time, the sum of the Total
Tranche B Term Loan Commitment, the Total Tranche C Term Loan Commitment, the
Total Incremental Term Loan Commitment and the Total Credit-Linked Commitment.
"Total Credit-Linked Commitment" shall mean, at any time, the sum of
the Credit-Linked Commitments of each of the CL Lenders at such time.
"Total Incremental Term Loan Commitment" shall mean, at any time, the
sum of the Incremental Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Leverage Ratio" shall mean, on any date of determination, the
ratio of (i) Consolidated Net Debt on such date to (ii) Consolidated EBITDA for
the Test Period most recently ended on or prior to such date; provided that for
all purposes of this Agreement, Consolidated EBITDA for purposes of the Total
Leverage Ratio shall be determined on a Pro Forma Basis.
"Total Tranche B Term Loan Commitment" shall mean, at any time, the
sum of the Tranche B Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Tranche C Term Loan Commitment" shall mean, at any time, the
sum of the Tranche C Term Loan Commitments of each of the Lenders with such a
Commitment at such time.
"Total Unutilized Credit-Linked Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Credit-Linked Commitment as in
effect at such time less (y) the Aggregate CL Exposure at such time.
"Trade Letter of Credit" shall have the meaning set forth in Section
2A.01(a).
"Tranche" shall mean the respective facilities and commitments
utilized in making Loans and issuing Letters of Credit and Bank Guaranties
hereunder (i.e., whether Tranche B Term Loans, Tranche C Term Loans, the CL
Tranche or Incremental Term Loans
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made pursuant to one or more tranches designated pursuant to the respective
Incremental Term Loan Commitment Agreements in accordance with the relevant
requirements specified in Section 1.15); provided that in the circumstances
contemplated by Section 1.15(c), Incremental Term Loans may be made part of a
then existing Tranche of Term Loans. On the Restatement Effective Date there
shall be three Tranches hereunder; namely (i) the CL Tranche, (ii) the Tranche B
Term Loans and related commitments and (iii) the Tranche C Term Loans and
related commitments.
"Tranche B Term Loan Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Tranche B Term Loan Commitment," as the same may be
terminated pursuant to Sections 3.02, 3.03 and/or 10.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche B Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B/C Term Loan Maturity Date" shall mean April 12, 2013.
"Tranche C Term Loan" shall mean have the meaning provided in Section
1.01(b).
"Tranche C Term Loan Borrowing Amount" shall mean, with respect to
each Lender, the amount set forth opposite such Lender's name in Schedule I
directly below the column entitled "Tranche C Term Loan Borrowing Amount,"
(i.e., the sum of the Converted Tranche C Term Loans and the Tranche C Term Loan
Commitment) as the same may be (x) reduced from time to time as a result of
prepayments and repayments pursuant to Section 4.01, 4.02 and/or 10 or (y)
adjusted from time to time as a result of assignments of Tranche C Term Loans to
or from such Lender pursuant to Section 1.13 to 13.04(b).
"Tranche C Term Loan Commitment" shall mean, with respect to each
Lender, the amount set forth opposite such Lender's name in Schedule I directly
below the column entitled "Tranche C Term Loan Commitment," as the same may be
terminated pursuant to Sections 3.02, 3.03 and/or 10.
"Tranche C Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche C Term Note" shall have the meaning provided in Section
1.05(a).
"Transaction" shall mean, collectively, (i) the amendment and
restatement of the Original Credit Agreement in the form of this Agreement as
provided herein, (ii) the entering into of the ABL Credit Documents and the
initial borrowing thereunder, (iii) the occurrence of the Restatement Effective
Date and the Credit Events occurring on such date, (iv) the
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consummation of the Refinancing, and (v) the payment of fees and expenses in
connection with the foregoing.
"Treaty" means the Treaty establishing the European Community being
the Treaty of Rome of March 25, 1957, as amended by the Single ββββββββ βββ
ββββ, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992)
and the Treaty of Amsterdam (which was signed in Amsterdam on October 2, 1997).
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"U.S." or "United States" shall mean the United States of America.
"U.S. Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"U.S. Borrower Bank Guaranty" shall mean each Bank Guaranty (which may
be denominated in Dollars or an Alternative Currency) issued for the account of
the U.S. Borrower pursuant to section 2B.01 and designated as such by the U.S.
Borrower in the respective Bank Guaranty Request.
"U.S. Borrower Incremental Term Loans" shall mean Incremental Term
Loans incurred by the U.S. Borrower.
"U.S. Borrower Letter of Credit" shall mean each Letter of Credit
(which must be denominated in Dollars or an Alternative Currency) issued for the
account of the U.S. Borrower pursuant to Section 2A.01.
"U.S. Borrower Term Loans" shall mean and include all Tranche B Term
Loans and all U.S. Borrower Incremental Term Loans.
"U.S. Credit Agreement Party" shall mean each Credit Agreement Party
other than the Bermuda Borrower.
"U.S. Credit Party" shall mean each U.S. Credit Agreement Party and
each U.S. Subsidiary Guarantor.
"U.S. ββββ Group" shall mean the U.S. Borrower and the U.S. Subsidiary
Guarantors.
"U.S. Dollars," "Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States of America.
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; provided that
determinations in accordance with U.S. GAAP for purposes of the definition of
"Incremental Term Loan Commitment Requirements" and Sections 4.02, 8.15 and 9,
including defined terms as used therein, and for all
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purposes of determining the Senior Secured Leverage Ratio and the Total Leverage
Ratio are subject (to the extent provided therein) to Section 13.07(a).
"U.S. Leasehold Property" shall mean each Leasehold Property located
in the United States.
"U.S. Mortgaged Property" shall mean each Real Property located in the
United States or any State or territory thereof with respect to which a Mortgage
is required to be delivered pursuant to the terms of this Agreement.
"U.S. Pledge Agreement" shall have the meaning provided in Section
5.11(b).
"U.S. Pledge Agreement Collateral" shall mean all of the "Collateral"
as defined in the U.S. Pledge Agreement.
"U.S. Security Agreement" shall have the meaning provided in Section
5.11(c).
"U.S. Security Agreement Collateral" shall mean all of the
"Collateral" as defined in the U.S. Security Agreement.
"U.S. Security Documents" shall mean and include the U.S. Security
Agreement, the U.S. Pledge Agreement, each Mortgage covering a U.S. Mortgage
Property and each Additional Security Document covering assets of a U.S. Credit
Party situated in the United States.
"U.S. Subsidiaries Guaranty" shall have the meaning provided in
Section 5.10(a).
"U.S. Subsidiary Guarantor" shall mean (i) each Wholly-Owned Domestic
Subsidiary of Intermediate Holdco as of the Restatement Effective Date (other
than (x) the U.S. Borrower and (y) the Excluded Domestic Subsidiary) and (ii)
each other Wholly-Owned Domestic Subsidiary of Intermediate Holdco created,
established or acquired after the Restatement Effective Date which executes and
delivers a U.S. Subsidiaries Guaranty, unless and until such time as the
respective Domestic Subsidiary ceases to constitute a Domestic Subsidiary or is
released from all of its obligations under its U.S. Subsidiaries Guaranty in
accordance with the terms and provisions thereof, provided that for purposes of
Sections 9.02(ix), 9.02(xiii), 9.04(b)(xvi) and 9.05(ix) and the definition of
"U.S. ββββ Group," the term "U.S. Subsidiary Guarantor" (and any term
incorporating such term by reference) shall not include Corporate Holdco.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" shall mean the amount, if any, by which
the actuarial present value of accumulated benefits of any Plan subject to Title
IV of ERISA as of the close of its most recent plan year, determined using
actuarial assumptions at such time consistent with those prescribed by Financial
Account Standards No. 87, exceeds the fair market value of the assets allocable
to such liabilities.
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"Unpaid Drawing" shall have the meaning provided in Section 2A.05(a).
"Unreimbursed Payment" shall have the meaning provided in Section
2B.05(a).
"Unrestricted Cash" shall mean all cash and Cash Equivalents owned or
held by Holdings and its Subsidiaries other than cash and Cash Equivalents owned
or held by the Excluded Bermuda Insurance Companies.
"Unrestricted Subsidiary" of any Person shall mean (i) at any time
prior to the repayment in full of both the Existing 2009 Senior Notes and the
Existing 2013 Senior Notes, any Subsidiary of such Person that is not a
Restricted Subsidiary and (ii) thereafter, any Subsidiary of such Person.
"Unrestricted Wellbeing Joint Venture" shall mean Westlake Wellbeing
Company, Wellbeing IP Holdco and Wellbeing Edco.
"Voting Participant" shall have the meaning provided in Section
13.04(a).
"Voting Participant Notice" shall have the meaning provided in Section
13.04(a).
"Weighted Average Life to Maturity" shall mean, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the product obtained
by multiplying (x) the amount of each then remaining installment or other
required scheduled payments of principal, including payment at final maturity,
in respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment.
"Wellbeing Edco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to promote nutritional
and wellbeing education.
"Wellbeing IP Holdco" shall mean a Delaware corporation or limited
liability company formed (or to be formed) by Holdings to hold the intellectual
property rights related to the Wellbeing Project.
"Wellbeing Project" shall mean the start-up, construction and
operation by Westlake Wellbeing Company of a well-being
center/hotel/spa/conference center/studio on the Westlake Village Property.
"Wellbeing Project Financing" shall mean Indebtedness incurred by
Holdings, so long as (a) the proceeds thereof are used (or, in the case of
sub-clause (iii) below, deemed used) solely to (i) finance the construction,
start-up and operational deficits of the Wellbeing Project (including any "cost
overruns" on the construction of the Wellbeing Project), (ii) make an Investment
in, and/or repay an intercompany loan owing to, Intermediate Holdco, the
proceeds of which are, in turn, used by Intermediate Holdco to make an
Investment in, and/or repay an intercompany loan owing to, the U.S. Borrower,
(iii) "finance" customary expenses which are (x) incurred by lenders providing
such Indebtedness and treated as "protective advances" under the documentation
governing such Indebtedness (e.g., advances for the payment of real estate
taxes, insurance premiums, ground rent and maintenance and repair costs) and (y)
deemed added
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as additional Indebtedness of Holdings under such documentation (it being
understood, however, that Indebtedness incurred by Holdings under this clause
(iii) may be in the form of a guarantee by Holdings of additional Indebtedness
incurred by the Unrestricted Wellbeing Joint Venture for the purposes described
above in this clause (iii) rather than in the form of direct incurrence by
Holdings), (iv) pay accrued but unpaid interest on the principal of Indebtedness
described in this definition, together with reasonable transaction fees incurred
in connection with the incurrence thereof and/or (v) extend, renew and/or
refinance any Indebtedness theretofore incurred pursuant to this definition, (b)
such Indebtedness does not require any scheduled principal repayments prior to
the final stated maturity thereof, (c) such Indebtedness does not require any
mandatory repayments prior to the final stated maturity thereof other than in
connection with (x) a "change of control" (which "change of control" shall not
include triggers any tighter than those contained in the definition of "Change
of Control" in this Agreement) or (y) issuances of equity by, or capital
contributions to, Holdings, (d) such Indebtedness does not provide for
guaranties or security from, or require any representation, warranty, event of
default or covenant to be applicable to, any Subsidiary of Holdings, (e) such
Indebtedness provides for an "interest reserve" covering all interest which will
accrue on such Indebtedness over the term thereof, which interest may be in the
form of a committed but initially unfunded portion of such Indebtedness
specifically reserved for the payment of accrued but unpaid interest on such
Indebtedness, (f) such Indebtedness expressly permits the pledge of the Equity
Interests of the Unrestricted Wellbeing Joint Ventures pursuant to the U.S.
Pledge Agreement, (g) in the case of any Indebtedness incurred to extend, renew
and/or refinance any Indebtedness theretofore incurred in reliance on this
definition, the requirements of clauses (b) through (f), inclusive, above and
clause (h) below are satisfied at the time of the incurrence thereof and (h) all
other terms of such Indebtedness (including, without limitation, with respect to
prepayment provisions, covenants and defaults) are reasonably acceptable to the
Administrative Agent, as such Indebtedness may be amended, modified,
supplemented, extended, renewed and/or refinanced from time to time in
accordance with the terms hereof and thereof. The incurrence of the Wellbeing
Project Financing shall be deemed to be a representation and warranty by
Holdings that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Section 10.
"Wellbeing Project Financing Debt Cap Amount" shall mean, at any time,
$150,000,000 (as such amount may be reduced by any repayments of principal of
the Wellbeing Project Financing, except to the extent such repayment is made in
connection with a refinancing of such Wellbeing Project Financing consummated in
accordance with the definition of "Wellbeing Project Financing"); provided,
however, that (i) the "Wellbeing Project Financing Debt Cap Amount" may exceed
the amount otherwise set forth above at any time, if (but only if) any excess
over such amount is (I) used by Holdings to finance cost overruns and/or
operational deficits of the Wellbeing Project and/or (II) incurred by Holdings
for the purposes described in clause (a)(iii) of the definition of "Wellbeing
Project Financing", and (ii) any such excess permitted by preceding clause (i)
shall also (but without duplication) be reduced by any repayments of principal
of the Wellbeing Project Financing, except to the extent such repayment is made
in connection with a refinancing of such Wellbeing Project Financing consummated
in accordance with the definition of "Wellbeing Project Financing."
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"Wellbeing Project Financing Documents" shall mean the loan agreement,
dated as of March 3, 2006, among Holdings, the lenders party thereto from time
to time, Deutsche Bank Trust Company Americas, as administrative agent, and
Deutsche Bank Securities, Inc., as sole lead arranger and sole book runner, and
each other agreement, document or instrument relating to the incurrence or
issuance of the Wellbeing Project Financing, as the same may be amended,
modified, supplemented, extended, renewed and/or refinanced from time to time in
accordance with the terms hereof and thereof.
"Westlake Village Property" shall mean that certain property
identified to the Administrative Agent of twenty (20) acres (more or less) that
is adjacent to the parcel on which the U.S. Borrower's Corporate Headquarters is
located in the City of Westlake Village, Ventura County, California.
"Westlake Wellbeing Company" shall mean Westlake Wellbeing Properties
LLC, a Delaware limited liability company formed by Holdings to construct and
operate the Wellbeing Project and/or promote nutritional and wellbeing
education.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is a Domestic Subsidiary of such
Person.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person that is not a Domestic Subsidiary of such
Person.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required by applicable law to be held by
Persons other than such Person) is at the time owned by such Person and/or one
or more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
limited liability company, association, joint venture or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% Equity Interest at such time; provided that any Foreign Subsidiary of such
Person at least 98% of whose capital stock or other Equity Interests are owned
by such Person and/or one or more Wholly-Owned Subsidiaries (determined after
giving effect to this proviso) of such Person at such time shall be deemed to be
a Wholly-Owned Subsidiary of such Person.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
Section 12. The Agents.
12.01 Appointment. (a) Each Lender hereby irrevocably designates and
appoints (x) DBAG as Administrative Agent for such Lender (for purposes of this
Section 12 and the term "Agent" as used herein, the term "Administrative Agent"
shall mean DBAG in its capacities as Administrative Agent, Deposit Bank, the
Intermediate Holdco Paying Agent and as Collateral Agent hereunder and pursuant
to the Security Documents), (y) BAS as Syndication Agent for such Lender, and
(z) Scotia Capital and Rabobank as Co-Documentation Agents for such Lender, each
to act as specified herein and in the other Credit Documents, and each such
Lender hereby irrevocably authorizes the Administrative Agent, the Syndication
Agent and each
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Co-Documentation Agent to take such action on its behalf under the provisions of
this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to or required of the
Administrative Agent, the Syndication Agent or the Co-Documentation Agents, as
the case may be, by the terms of this Agreement and the other Credit Documents,
together with such other powers as are reasonably incidental thereto. Each of
the Agents may perform any of their respective duties under this Agreement, the
other Credit Documents and any other instruments and agreements referred to
herein or therein by or through its respective officers, directors, agents,
employees or affiliates (it being understood and agreed, for avoidance of doubt
and without limiting the generality of the foregoing, that the Administrative
Agent and/or Collateral Agent may perform any of its duties under the Security
Documents by or through one or more of its affiliates).
(b) The provisions of this Section 12 are solely for the benefit of
the Administrative Agent, the Syndication Agent and the Co-Documentation Agents
and the Lenders, and neither Holdings nor any of its Subsidiaries shall have any
rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, each of the
Administrative Agent, the Syndication Agent and the Documentation Agent shall
act solely as agent for the Lenders, and none of the Administrative Agent, the
Syndication Agent and the Co-Documentation Agents assumes (and shall not be
deemed to have assumed) any obligation or relationship of agency or trust with
or for Holdings or any of its Subsidiaries.
12.02 Nature of Duties. (a) No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither any Agent nor any of its officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). The duties of the Agents shall be mechanical and
administrative in nature; no Agent shall have by reason of this Agreement or any
other Credit Document a fiduciary relationship in respect of any Lender or the
holder of any Note and nothing in this Agreement or in any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon any Agent any obligations in respect of this Agreement or any other
Credit Document except as expressly set forth herein or therein, provided, that
the Administrative Agent and/or the Collateral Agent shall be deemed to be a
trustee and stand in a fiduciary relationship with respect to the Lenders and
the holders of Notes for purposes of any Security Document governed by the laws
of a jurisdiction located outside the United States where the Administrative
Agent and/or the Collateral Agent, as the case may be, shall determine, based on
advice of local counsel, that same is necessary or desirable for purposes of
realizing the benefits intended to be conferred pursuant to such Security
Document, and the Lenders hereby irrevocably designate each of the
Administrative Agent and the Collateral Agent as their trustee for such purpose
and authorize each of the Administrative Agent and the Collateral Agent to at
any time and from time to time take all actions (including, without limitation,
making demand for all amounts then due and payable and the exercise of other
remedies) on their behalf in accordance with the terms of such Security Document
without the necessity of any notice to or further consent from any Lender, and
the Lenders hereby agree to indemnify the Administrative Agent and the
Collateral Agent (and each of their respective officers, directors, trustees,
employees, representatives and agents)
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and hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, the taking of any action or any omission
to take action under any such Security Document unless such action is taken or
omitted to be taken with gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final and non-appealable decision).
(b) Notwithstanding any other provision of this Agreement or any
provision of any other Credit Document, the Lead Arranger is named as such for
recognition purposes only, and in its capacity as such shall have no powers,
duties, responsibilities or liabilities with respect to this Agreement or the
other Credit Documents or the transactions contemplated hereby and thereby; it
being understood and agreed that the Lead Arranger shall be entitled to all
indemnification and reimbursement rights in favor of "Agents" as, and to the
extent, provided for under Sections 12.07 and 13.01. Without limitation of the
foregoing, the Lead Arranger shall not, solely by reason of this Agreement or
any other Credit Documents, have any fiduciary relationship in respect of any
Lender or any other Person.
12.03 Certain Rights of the Agents. The Agents shall have the right to
request instructions from the Required Lenders at any time. If any Agent shall
request instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Lenders; and such Agent shall not incur liability to any Lender by
reason of so refraining. Without limiting the foregoing, neither any Lender nor
the holder of any Note shall have any right of action whatsoever against any
Agent or any of its employees, directors, officers, agents or affiliates as a
result of such Agent or such other person acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders.
12.04 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected (and shall have no liability to any Person) in relying,
upon any note, writing, resolution, notice, statement, certificate, telex,
teletype or telecopier message, cablegram, radiogram, order, telephone message
or other document or conversation that such Agent believed, in the absence of
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision), to be the proper Person,
and, with respect to all legal matters pertaining to this Agreement and any
other Credit Document and its duties hereunder and thereunder, upon advice of
counsel selected by such Agent (which may be counsel for the Credit Parties)
and, with respect to other matters, upon advice of independent public
accountants or other experts selected by it.
12.05 Notice of Default, etc. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has actually received written notice
from a Lender or Holdings or either Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such
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a notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders (as determined by the Administrative Agent in its sole
discretion).
12.06 Nonreliance on Agents and Other Lenders. Independently and
without reliance upon any Agent, each Lender, each Issuing Lender, each Bank
Guaranty Issuer and the holder of each Note, to the extent it deems appropriate,
has made and shall continue to make its own independent investigation of the
financial condition and affairs of Holdings and its Subsidiaries in connection
with the making and the continuance of the Loans, the issuance and the
participation in Letters of Credit or Bank Guaranties and the taking or not
taking of any action in connection herewith and, except as expressly provided in
this Agreement, no Agent shall have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender, any Issuing Lender, any Bank
Guaranty Issuer or the holder of any Note with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans, the issuing of any Letter of Credit or any Bank Guaranty or at any
time or times thereafter. No Agent or their respective affiliates nor any of
their respective officers, directors, agents or employees shall be responsible
to any Lender, any Issuing Lender, any Bank Guaranty Issuer or the holder of any
Note for, or be required or have any duty to ascertain, inquire or verify the
accuracy of, (i) any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith, (ii) the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document, (iii) the financial condition of
Holdings and any of its Subsidiaries, (iv) the performance or observance of any
of the terms, provisions or conditions of this Agreement or any other Credit
Document, (v) the satisfaction of any of the conditions precedent set forth in
Section 5 or 6, or (vi) the existence or possible existence of any Default or
Event of Default.
12.07 Indemnification. (a) To the extent any Agent (or any affiliate
thereof) is not reimbursed and indemnified by the Credit Agreement Parties, the
Lenders will reimburse and indemnify such Agent (and any affiliate thereof) in
proportion to their respective "percentages" as used in determining the Required
Lenders (determined as if there were no Defaulting Lenders and at the time such
indemnity is sought), for and against any and all liabilities, obligations,
losses, damages, penalties, claims, actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by such Agent (or any affiliate thereof) in performing its
respective duties hereunder or under any other Credit Document or in any way
relating to or arising out of this Agreement or any other Credit Document in its
capacity as Agent, provided that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
(b) Any Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Credit Document (except actions
expressly required to be taken
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by it hereunder or under the Credit Documents) unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
(c) The agreements in this Section 12.07 shall survive the payment of
all Obligations.
12.08 Agents in their Individual Capacities. (a) With respect to its
obligation to make Loans, or issue or participate in Letters of Credit or Bank
Guaranties, under this Agreement, each Agent shall have the rights and powers
specified herein for a "Lender" and may exercise the same rights and powers as
though it were not performing the duties specified herein; and the term
"Lender," "Required Lenders," "Supermajority Lenders," "Majority Lenders,"
"holders of Notes" or any similar terms shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity. Each Agent
and its affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, investment banking, trust or other business with, or
provide debt financing, equity capital or other services (including financial
advisory services) to, any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
(b) Without limiting the provisions of preceding clause (a), the
parties hereto acknowledge and agree that any Agent hereunder may also act in
individual or agency capacities in connection with other financings, including,
without limitation, pursuant to the ABL Credit Documents. The parties hereto
agree to each of the Agents acting in such other individual and agency
capacities, and shall not raise any claim in connection therewith (except to the
extent resulting from the gross negligence or willful misconduct of the
respective such Person as an Agent hereunder).
12.09 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
endorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents (including, without limitation, its functions
and duties as Collateral Agent) at any time by giving 30 Business Days' prior
written notice to the Lenders and, unless a Default or an Event of Default under
Section 10.05 then exists, Holdings. Any such resignation by the Administrative
Agent hereunder shall also constitute its resignation (if applicable) as an
Issuing Lender and Bank Guaranty Issuer in which case the resigning
Administrative Agent (x) shall not be required to issue any further Letters of
Credit or Bank Guaranties hereunder and (y) shall maintain all of its rights as
Issuing Lender or Bank Guaranty Issuer, as the case may be, with
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respect to any Letter of Credit or Bank Guaranty issued by it, prior to the date
of such resignation. Such resignation shall take effect upon the appointment of
a successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder
and/or under the other Credit Documents who shall be a commercial bank or trust
company acceptable to Holdings, which acceptance shall not be unreasonably
withheld or delayed (provided that Holdings' approval shall not be required if
an Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of Holdings (which consent shall not be unreasonably withheld or
delayed, provided that Holdings' consent shall not be required if an Event of
Default then exists), shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder and/or under the other Credit
Documents until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Lenders appoint a
successor Administrative Agent as provided above.
(e) The Syndication Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Lenders. Such
resignation shall take effect at the end of such five Business Day period.
(f) Each Co-Documentation Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Lenders. Such
resignation shall take effect at the end of such five Business Day period.
(g) Upon a resignation of any Agent pursuant to this Section 12.10,
such Agent shall remain indemnified to the extent provided in this Agreement and
the other Credit Documents and the provisions of this Section 12 shall continue
in effect for the benefit of such Agent for all of its actions and inactions
while serving as such Agent.
12.11 Collateral Matters. (a) Each Lender authorizes and directs the
Collateral Agent to enter into the Security Documents and the Intercreditor
Agreement. Each Lender hereby agrees, and each holder of any Note or participant
in Letters of Credit or Bank Guaranty by the acceptance thereof will be deemed
to agree, that, except as otherwise set forth herein, any action taken by the
Required Lenders in accordance with the provisions of this Agreement or the
Security Documents, subject to the provisions of the Intercreditor Agreement,
and the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other
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powers as are reasonably incidental thereto, shall be authorized and binding
upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of
all of the Lenders, without the necessity of any notice to or further consent
from any Lender, from time to time prior to an Event of Default, to take any
action with respect to any Collateral or Security Documents, subject to the
provisions of the Intercreditor Agreement, which may be necessary to perfect and
maintain perfected the security interest in and liens upon the Collateral
granted pursuant to the Security Documents.
(b) The Lenders hereby authorize the Collateral Agent, at its option
and in its discretion, to release any Lien granted to or held by the Collateral
Agent upon any Collateral, subject to the provisions of the Intercreditor
Agreement, (i) upon termination of the Commitments (and all Letters of Credit
and Bank Guaranties) and indefeasible payment and satisfaction in full of all of
the Obligations at any time arising under or in respect of this Agreement or the
Credit Documents or the transactions contemplated hereby or thereby, (ii)
constituting property being sold or otherwise disposed of (to Persons other than
Holdings and its Subsidiaries) upon the sale or other disposition thereof in
compliance with Section 9.02, (iii) if approved, authorized or ratified in
writing by the Required Lenders (or all of the Lenders hereunder, to the extent
required by Section 13.12) or (iv) as otherwise may be expressly provided in the
relevant Security Documents. Upon request by the Administrative Agent at any
time, the Lenders will confirm in writing the Collateral Agent's authority to
release particular types or items of Collateral pursuant to this Section 12.11.
(c) The Collateral Agent shall have no obligation whatsoever to the
Lenders or to any other Person to assure that the Collateral exists or is owned
by any Credit Agreement Party or any of its Subsidiaries or is cared for,
protected or insured or that the Liens granted to the Collateral Agent herein or
pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise or to continue exercising at all or in any manner or under any duty
of care, disclosure or fidelity any of the rights, authorities and powers
granted or available to the Collateral Agent in this Section 12.11 or in any of
the Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given the
Collateral Agent's own interest in the Collateral as one of the Lenders and that
the Collateral Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct (as determined by a court
of competent jurisdiction in a final and non-appealable decision).
12.12 Delivery of Information. The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from any Credit Agreement Party, any Subsidiary, the
Required Lenders, any Lender or any other Person under or in connection with
this Agreement or any other Credit Document except (i) as specifically provided
in this Agreement or any other Credit Document and (ii) as specifically
requested from time to time in writing by any Lender with respect to a specific
document, instrument, notice or other written communication received by and in
the possession of the Administrative Agent at the time of receipt of such
request and then only in accordance with such specific request.
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12.13 Special Appointment of Collateral Agent (Germany). (a) Without
prejudice to the generality of Section 12.11:
(i) each Lender hereby appoints, on the terms hereof, and each Hedging
Creditor (as defined in the U.S. Security Agreement) by its acceptance of
the benefits of the German Security (as defined below) and by notice in
writing to the Collateral Agent to that effect hereby appoints, on the
terms hereof, the Collateral Agent as trustee (Treuhaender), agent and
administrator for the purpose of holding on trust (Treuhand), accepting,
administering and enforcing the German Security for and on behalf of the
Lenders and the other Secured Creditors;
(ii) the Collateral Agent accepts its appointment as a trustee
(Treuhaender), agent and administrator of the German Security on the terms
and subject to the conditions set out in this Agreement;
(iii) the Secured Creditors agree that, in relation to the German
Security, no Secured Creditor shall exercise any independent power to
enforce any German Security or take any other action in relation to the
enforcement of the German Security, or make or receive any declarations in
relation thereto.
(b) The Collateral Agent shall:
(i) hold and administer any German Security which is security assigned
or otherwise transferred (Sicherungsubereignung/Sicherungsabtretung) under
German law under a non-accessory security right (nicht akzessorische
Sicherheit) to it as a trustee (Treuhaender) for the benefit of the Secured
Creditors; and
(ii) administer any German Security which is pledged under German law
(Verpfaendung) or otherwise transferred in accordance with German law to
any of the Secured Creditors under an accessory security right
(akzessorische Sicherheit).
"German Security" means the assets the subject of a security document
which is governed by German Law. Each Secured Creditor hereby authorizes the
Collateral Agent to accept, as its representative (Stellvertreter), any German
Security created in favor of such Secured Creditor.
(c) Furthermore, each Secured Creditor hereby authorizes
(bevollmaechtigt) the Collateral Agent (with the right of sub-delegation) to
enter into any documents evidencing German Security and to make and accept all
declarations and take all actions as it considers necessary or useful in
connection with any German Security on behalf of such Secured Creditor. The
Collateral Agent shall further be entitled to rescind, amend and/or execute new
and different documents securing the German Security. The Collateral Agent is
released from the restrictions arising under Clause 181 of the German Civil Code
(Buergerliches Gesetzbuch) (restrictions on self-dealing).
12.14 Special Provisions Relating to Canadian Security Documents. (a)
For greater certainty, and without limiting the powers of the Collateral Agent
hereunder or under any of the Foreign Security Documents, each of the Bermuda
Borrower and the Secured Creditors
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hereby acknowledges that the Collateral Agent is, for purposes of holding any
security granted by ββββ Foods of Canada Ltd. ("ββββ Canada") on the property of
ββββ Canada pursuant to the laws of the Province of Quebec, the holder of an
irrevocable power of attorney (fonde de pouvoir) (within the meaning of the
Civil Code of Quebec) for all present and future Secured Creditors and in
particular for all present and future holders of the bond issued by ββββ Canada
in favor of the Collateral Agent (the "Canadian Bond"). Each of the Agents and
Lenders (for themselves as Secured Creditors and for the Other Creditors (as
defined in the security agreement governed by the laws of the Province of
Ontario executed by ββββ Canada (the "Canadian Security Agreement")) hereby
irrevocably confirms the constitution of and constitutes, to the extent
necessary, the Collateral Agent as the holder of an irrevocable power of
attorney (fonde de pouvoir) (within the meaning of Article 2692 of the Civil
Code of Quebec) in order to hold security granted by ββββ Canada in the Province
of Quebec to secure the Canadian Bond. The acceptance of an assignment by an
assignee of a Secured Creditor shall be deemed to have confirmed and ratified
the constitution of the Collateral Agent as the holder of such irrevocable power
of attorney (fonde de pouvoir). For greater certainty, by their acceptance of
the benefits of the Canadian Security Agreement, each of the Other Creditors (as
defined in the Canadian Security Agreement) shall be deemed to have confirmed
and ratified the appointment of the Collateral Agent for purposes of the Bond
and the Bond pledge agreement to be entered into by ββββ Canada pursuant to the
laws of the Province of Quebec. Notwithstanding the provisions of Section 32 of
An Act respecting the special powers of legal persons (Quebec), each of the
Bermuda Borrower, the Agents and the Lenders (for themselves as Secured
Creditors and for the Other Creditors) agree that the Collateral Agent may
acquire and be the holder of the Canadian Bond. The Bermuda Borrower hereby
acknowledges that the Canadian Bond constitutes a title of indebtedness, as such
term is used in Article 2692 of the Civil Code of Quebec.
(b) Each Lender irrevocably consents to the amendment of the Canadian
Security Agreement pursuant to the acknowledgement, confirmation and amendment
of security dated as of the date hereof between ββββ Canada and the Collateral
Agent.
12.15 Special Appointment of Collateral Agent (Italy). (a) Without
prejudice to the generality of Section 12.11:
(i) each Lender (including, without limitation, each Lender which is a
Hedging Creditor (as defined in the Foreign Subsidiaries Guaranty)) (as
"mandante" under Italian law), by executing this Agreement, irrevocably
appoints the Collateral Agent to act as agent ("mandatario con
rappresentanza" under Italian law) under and in connection with the Foreign
Security Documents governed by Italian law (collectively, the "Italian
Collateral Documents") and irrevocably authorizes the Collateral Agent (x)
to execute on its behalf the Italian Collateral Documents, and (y) to
perform the duties and to exercise the rights, powers and discretions that
are specifically delegated to it under or in connection with the Italian
Collateral Documents, together with any other incidental rights, powers and
discretions; and
(ii) each Lender (including, without limitation, each Lender which is
a Hedging Creditor (as defined in the Foreign Subsidiaries Guaranty))
irrevocably authorizes the Collateral Agent for and on its behalf to
exercise the rights, powers and
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discretions which are specifically delegated to it by the terms of the
Italian Collateral Documents and this Agreement, together with all rights,
powers and discretions which are incidental thereto and to give any
discharge for any monies payable under the Italian Collateral Documents.
(b) Notwithstanding Section 13.08 hereof, the provisions of this
Section 12.15 shall be governed by Italian law.
12.16 Continuing Indemnities for Original Agents. Notwithstanding the
Amendment and Restatement of the Original Credit Agreement, the parties hereto
understand and agree that all indemnities provided pursuant to the Original
Credit Agreement (whether by the Original Lenders, the Borrowers or any other
Credit Party) shall continue in full force and effect in accordance with the
terms of the Original Credit Agreement, for any actions or occurrences prior to
the Restatement Effective Date, in accordance with the terms of the Original
Credit Agreement. Any indemnities pursuant to the preceding sentence shall be in
addition to any applicable indemnities hereunder.
Section 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Credit Agreement Parties jointly
and severally agree to: (i) whether or not the transactions herein contemplated
are consummated, pay all reasonable out-of-pocket costs and expenses of the
Agents, the Collateral Agent, the Intermediate Holdco Paying Agent, and the
Deposit Bank (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local and foreign counsel) in connection
with the negotiation, preparation, execution, delivery and administration of
this Agreement and the other Credit Documents (including, without limitation,
with respect to the Intermediate Holdco Refinancing, the Intermediate Holdco
Prepayment Consummation and the administration of the Credit-Linked Deposit
Account and the Credit-Linked Deposits) and the documents and instruments
referred to herein and therein and of the Administrative Agent and the
Collateral Agent in connection with any amendment, waiver or consent relating
hereto or thereto, and of each Agent in connection with its syndication efforts
with respect to this Agreement; provided, however, that the Credit Agreement
Parties shall not be obligated to pay legal fees and expenses of counsel
incurred in connection with the initial negotiation, preparation, execution and
delivery of the Credit Documents other than the legal fees and expenses of White
& Case LLP, and such other local and foreign counsel as may be engaged by the
Administrative Agent to address issues arising in connection with the
Transaction and/or to prepare security documentation governed by local or
foreign law; (ii) pay all reasonable out-of-pocket costs and expenses of each
Agent, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer, the
Intermediate Holdco Paying Agent, the Deposit Bank and each of the Lenders in
connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein or entered into or delivered in connection
therewith (including, without limitation, the reasonable fees and disbursements
of counsel) and the protection of the rights of each Agent, the Collateral
Agent, each Issuing Lender, each Bank Guaranty Issuer, the Intermediate Holdco
Paying Agent, the Deposit Bank and each of the Lenders thereunder (including,
without limitation, the reasonable fees and disbursements of counsel (including
in-house counsel) for each Agent, the Collateral Agent, each Issuing Lender,
each Bank Guaranty Issuer, the Intermediate Holdco Paying Agent, the Deposit
Bank and each of the
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Lenders); (iii) pay and hold each of the Agents, the Collateral Agent, each
Issuing Lender, each Bank Guaranty Issuer, the Intermediate Holdco Paying Agent,
the Deposit Bank and each of the Lenders harmless from and against any and all
present and future stamp, documentary, transfer, sales and use, value added,
excise and other similar taxes with respect to the foregoing matters, the
performance of any obligation under this Agreement or any other Credit Document
or any payment thereunder, and save each of the Agents, the Collateral Agent,
each Issuing Lender, each Bank Guaranty Issuer, the Intermediate Holdco Paying
Agent, the Deposit Bank and each of the Lenders harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to the Agents, the Collateral Agent, such
Issuing Lender, such Bank Guaranty Issuer, the Intermediate Holdco Paying Agent,
the Deposit Bank or such Lender) to pay such taxes; and (iv) indemnify each
Agent, the Collateral Agent, each Issuing Lender, each Bank Guaranty Issuer, the
Intermediate Holdco Paying Agent, the Deposit Bank each Lender, each affiliate
of the foregoing Persons and their respective officers, directors, employees,
representatives, trustees, advisors, and agents (each, an "Indemnified Person")
from and hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, costs, expenses and disbursements incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to,
or by reason of, (a) any investigation, litigation or other proceeding (whether
or not any Agent, the Collateral Agent, any Issuing Lender, any Bank Guaranty
Issuer, the Intermediate Holdco Paying Agent, the Deposit Bank or any Lender is
a party thereto and whether or not any such investigation, litigation or other
proceeding is between or among any Agent, the Collateral Agent, any Issuing
Lender, any Bank Guaranty Issuer, the Intermediate Holdco Paying Agent, the
Deposit Bank any Lender, any Credit Party or any third Person or otherwise)
related to the entering into and/or performance of this Agreement or any other
Document or the use of any Letter of Credit, Bank Guaranty, any Intermediate
Holdco Repayment Funds, Credit-Linked Deposit or the proceeds of any Loans
hereunder or the Transaction or the consummation of any other transactions
contemplated by any Document or the exercise or enforcement of any of their
rights or remedies provided herein or in the other Credit Documents (but
excluding any such liabilities, obligations, losses, damages, penalties, claims,
actions, costs, expenses and disbursements to the extent incurred by reason of
the gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision) of the Person to
be indemnified), or (b) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface of any
Real Property at any time owned, leased or operated by any Credit Party or any
of its Subsidiaries, the Release, generation, storage, transportation, handling
or disposal of Hazardous Materials at any location, whether or not owned, leased
or operated by any Credit Party or any of its Subsidiaries, the non-compliance
of any Real Property with foreign, federal, state and local laws, regulations,
and ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim in connection with or relating to any
Credit Party, any of its Subsidiaries or any of their operations or activities
or any Real Property at any time owned, leased or operated by any Credit Party
or any of its Subsidiaries, in each case, including, without limitation, the
reasonable fees and disbursements of counsel and independent consultants
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such liabilities, obligations, losses, damages,
penalties, claims, actions, costs, expenses and disbursements to the extent
incurred by reason of the gross negligence or willful misconduct (as determined
by a court of competent jurisdiction in a final
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and non-appealable decision) of the Person to be indemnified)). To the extent
that the undertaking to indemnify, pay or hold harmless any Agent, the
Collateral Agent, any Issuing Lender, any Bank Guaranty Issuer, the Intermediate
Holdco Paying Agent, the Deposit Bank, or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Credit Agreement Parties hereby agree to make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
13.02 Right of Setoff. (a) In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each
Issuing Lender, each Bank Guaranty Issuer, each Lender and the Collateral Agent
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to Holdings or any of its
Subsidiaries or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Agent,
such Issuing Lender, Bank Guaranty Issuer, such Lender or the Collateral Agent
(including, without limitation, by branches and agencies of such Agent, such
Issuing Lender, such Bank Guaranty Issuer, such Lender or the Collateral Agent
wherever located) to or for the credit or the account of Holdings or any of its
Subsidiaries against and on account of the Obligations and liabilities of
Holdings or such Subsidiary, as the case may be, to such Agent, such Issuing
Lender, such Bank Guaranty Issuer, such Lender or the Collateral Agent under
this Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Lender pursuant to
Section 13.06(b), all participations by any Lender in Letters of Credit, Bank
Guaranties as required pursuant to the provisions of this Agreement and all
other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Agent, such Issuing Lender, such Bank Guaranty Issuer, such Lender or the
Collateral Agent shall have made any demand hereunder and although said
Obligations shall be contingent or unmatured. Each Borrower agrees that any
Lender purchasing participations in one or more Letters of Credit or Bank
Guaranties issued to it as required by the provisions of this Agreement, or
purchasing participations as required by Section 13.06(b), may, to the fullest
extent permitted by law, exercise all rights (including without limitation the
right of setoff) with respect to such participations as fully as if such Lender
is a direct creditor of such Borrower with respect to such participations in the
amount thereof.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE
LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO LENDER OR THE ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF
SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR
INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE
UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN
WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING
WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR
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THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE
ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS
SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE
ADMINISTRATIVE AGENT HEREUNDER.
13.03 Notices. (a) Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit
Agreement Party, at the address specified opposite its signature below; if to
any Lender, at its address specified for such Lender on Schedule II; and if to
the Administrative Agent, at its Notice Office; or, as to any Credit Agreement
Party or any of the Agents, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as to each Lender, at
such other address as shall be designated by such Lender in a written notice to
Holdings and the Administrative Agent. All such notices and communications shall
be mailed, telegraphed, telexed, telecopied or cabled or sent by overnight
courier, and shall be effective when received.
(b) Without in any way limiting the obligation of Holdings and its
Subsidiaries to confirm in writing any telephonic notice permitted to be given
hereunder, any Agent, any Issuing Lender (in the case of the issuance of a
Letter of Credit) or any Bank Guaranty Issuer (in the case of the issuance of a
Bank Guaranty), as the case may be, may prior to receipt of written confirmation
act without liability upon the basis of such telephonic notice, believed by such
Agent, such Issuing Lender or such Bank Guaranty Issuer in good faith to be from
an Authorized Officer. In each such case, Holdings and each of the Borrowers
hereby waive the right to dispute such Agent's, or such Issuing Lender's or such
Bank Guaranty Issuer's record of the terms of such telephonic notice.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Agreement Party may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of each of the
Lenders and, provided, further, that, although any Lender may (without the
consent of any Credit Party) transfer, assign or grant participations in its
rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder
(and may not transfer or assign all or any portion of its Commitments or Loans
hereunder except as provided in Section 13.04(b)) and the transferee, assignee
or participant, as the case may be, shall not constitute a "Lender" hereunder
and, provided, further, that no Lender shall transfer or grant any participation
under which the participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Credit Document except (I) to the extent
such amendment or waiver would (i) extend the final scheduled maturity of any
Loan, Note, Letter of Credit or Bank Guaranty (unless such Letter of Credit or
Bank Guaranty is not extended beyond the CL Maturity Date) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of applicability
of any
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post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment or of a
mandatory repayment of Loans shall not constitute a change in the terms of such
participation, that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i), notwithstanding the
fact that such amendment or modification actually results in such a reduction),
(ii) consent to the assignment or transfer by any Credit Agreement Party of any
of its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Security Documents) supporting the Obligations in
which such participant is participating and (II) that, solely in the case of a
participant (each, a "Voting Participant") which (x) has purchased a
participation interest in such Lender's Commitments and/or outstanding Term
Loans in a minimum aggregate amount (without duplication) of at least $2,000,000
on or after the Restatement Effective Date and (y) is (A) designated by such
Lender to the U.S. Borrower and the Administrative Agent by written notice (a
"Voting Participant Notice") as being entitled to be accorded the rights of a
"voting" participant hereunder, (B) approved by the U.S. Borrower and the
Administrative Agent (such approvals not to be unreasonably withheld or delayed)
and (C) not a Disqualified Voting Participant, such participant shall be
entitled to vote with respect to each Tranche in which it holds a participation
from such Lender (and the voting rights of such Lender for each such Tranche
shall be correspondingly reduced), on a Dollar basis, as if such participant
were a Lender under such Tranche on any matter requiring or allowing such Lender
to provide or withhold its consent or to otherwise vote on any proposed action
(with any Voting Participant Notice, with respect to any Voting Participant, to
be effective only if same (a) states the full legal name of such Voting
Participant, as well as the relevant contact information and administrative
details for such Voting Participant, and (b) states the Dollar amount of the
participation interest in each Tranche purchased). In the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by the Borrowers hereunder shall be determined as if such Lender had not
sold such participation; provided that a Voting Participant shall have the
voting rights to which it is entitled as described in the preceding sentence.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its
outstanding Term Loans and/or Credit-Linked Commitments (and related outstanding
Obligations (and Credit-Linked Deposit, if applicable) hereunder) to (i) its
parent company and/or any affiliate of such Lender which is at least 50% owned
by such Lender or its parent company, (ii) one or more Lenders or (iii) in the
case of any Lender that is a fund that invests in bank loans, any other fund
that invests in bank loans and is managed by the same investment advisor of a
Lender or by an Affiliate of such investment advisor or (y) assign all, or if
less than all, a portion equal to at least (A) $1,000,000 in the aggregate for
the assigning Lender or assigning Lenders, of such outstanding principal amount
of Term Loans hereunder and (B) $1,000,000 in the aggregate for the assigning
Lender or assigning Lenders, of such Credit-Linked Commitments and related
Credit-Linked Deposit
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and Obligations, in each case, to one or more Eligible Transferees (treating (I)
any fund that invests in bank loans and (II) any other fund that invests in bank
loans and is managed by the same investment advisor as such fund or by an
Affiliate of such investment advisor, as a single Eligible Transferee), each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment and Assumption Agreement, provided that (i) at such time
Schedule I shall be deemed modified to reflect the outstanding Term Loans and/or
Credit-Linked Commitments, as the case may be, of such new Lender and of the
existing Lenders, (ii) upon the request of the respective Lender and upon the
surrender of the old Notes (if any), new Notes will be issued, at the Borrowers'
expense, to such new Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised outstanding Term
Loans, as the case may be, (iii) except in the case of assignments by the Agents
in connection with their syndication of this Agreement, the consent of the
Administrative Agent and, so long as no Default or Event of Default then exists
and is continuing, the U.S. Borrower shall be required in connection with any
such assignment pursuant to clause (y) of this Section 13.04(b) (which consent
shall not be unreasonably withheld or delayed) and (iv) Administrative Agent
shall receive at the time of each such assignment, from the assigning or
assignee Lender, the payment of a non-refundable assignment fee of $3,500 and,
provided, further, that such transfer or assignment will not be effective until
recorded by the Administrative Agent on the Register pursuant to Section 13.17.
To the extent of any assignment pursuant to this Section 13.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments (and, in the case of an assignment of Credit-Linked
Commitments, will lose its rights with respect to the assigned CL Percentage in
its Credit-Linked Deposit) and/or outstanding Term Loans, as the case may be. At
the time of each assignment pursuant to this Section 13.04(b) to a Person which
is not already a Lender hereunder and which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for Federal income tax
purposes, the respective assignee Lender shall, to the extent legally entitled
to do so, provide to the U.S. Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a Section
4.04(b)(ii) Certificate) described in Section 4.04(b)(ii) to the extent such
forms would provide a complete exemption from or reduction in United States
withholding tax. To the extent that an assignment of all or any portion of a
Lender's Commitments and related outstanding Obligations pursuant to Section
1.13 or this Section 13.04(b) would, at the time of such assignment, result in
increased costs under Section 1.10, 1.11, 2A.06, 2B.06, or 4.04 from those being
charged by the respective assigning Lender prior to such assignment, then the
Borrowers shall not be obligated to pay such increased costs (although the
Borrowers, in accordance with and pursuant to the other provisions of this
Agreement, shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Credit-Linked Commitment, if any Letters
of Credit or Bank Guaranties remain outstanding, assignments may be made as
provided above, except that the respective assignment shall be of a portion of
the respective CL Lender's participation in Letters of Credit and Bank
Guaranties (and the related share of its Credit-Linked Deposit), although any
such assignment effected after the termination of the Total Credit-Linked
Commitment shall not release the assigning CL Lender from its obligations as a
participant with respect to outstanding Letters of Credit or Bank Guaranties
(although the respective assignee may agree, as between itself and the
respective assigning CL Lender, that it shall be responsible for such amounts).
The Credit-Linked Deposit
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funded by any CL Lender shall not be released in connection with any assignment
of its Credit-Linked Commitment, but shall instead be purchased (to the extent
of the CL Percentage so assigned) by the relevant assignee and continue to be
held for application (if not already applied) pursuant to Section 2 in respect
of such assignee's obligations under the Credit-Linked Commitment assigned to
it.
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, without
the consent of the Administrative Agent or any Credit Agreement Party, any
Lender which is a fund may pledge all or any portion of its Notes or Loans to
its trustee or to a collateral agent or to another creditor providing credit or
credit support to such Lender in support of its obligations to such trustee,
such Collateral Agent or a holder of, or any other representative of a holder
of, such obligations, or such other creditor, as the case may be. No pledge
pursuant to this clause (c) shall release the transferor Lender from any of its
obligations hereunder or substitute (by foreclosure or otherwise) any such
pledge or assignee for such Lender as a party hereto.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent, the Collateral Agent or any Lender in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between any Credit Party and any Agent, the Collateral Agent or any
Lender shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any Agent, the Collateral Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Agent, the Collateral
Agent or any Lender to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Lenders
(other than any Lender that has consented in writing to waive its pro rata share
of such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to
such receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Credit Party to such Lenders in such amount as
shall result in
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a proportional participation by all of the Lenders in such amount; provided that
if all or any portion of such excess amount is thereafter recovered from such
Lender, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with U.S. GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the U.S. Borrower to the Lenders), provided that (i) except as otherwise
specifically provided herein, all computations determining the Excess Cash Flow,
the Senior Secured Leverage Ratio, the Total Leverage Ratio and compliance with
Sections 4, 8.15 and 9, including in each case definitions used therein, shall,
in each case, utilize United States accounting principles and policies in effect
at the time of the preparation of, and in conformity with those used to prepare,
the historical consolidated audited financial statements of the U.S. Borrower
delivered to the Lenders pursuant to Section 7.10(b) for Fiscal Year 2004, (ii)
to the extent expressly required pursuant to the provisions of this Agreement,
certain calculations shall be made on a Pro Forma Basis and (iii) for purposes
of determining compliance with any incurrence or expenditure tests set forth in
Sections 8 and/or 9, any amounts so incurred or expended (to the extent incurred
or expended in a currency other than Dollars) shall be converted into Dollars on
the basis of the exchange rates (as shown on Reuters ECB page 37 or, if same
does not provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) as in effect on the date of such
incurrence or expenditure under any provision of any such Section that has an
aggregate Dollar limitation provided for therein (and to the extent the
respective incurrence or expenditure test regulates the aggregate amount
outstanding at any time and it is expressed in terms of Dollars, all outstanding
amounts originally incurred or spent in currencies other than Dollars shall be
converted into Dollars on the basis of the exchange rates (as shown on Reuters
ECB page 37 or, if same does not provide such exchange rates, on such other
basis as is reasonably satisfactory to the Administrative Agent) as in effect on
the date of any new incurrence or expenditures made under any provision of any
such Section that regulates the Dollar amount outstanding at any time).
(b) All computations of interest and Fees hereunder shall be made on
the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or Fees are payable.
13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN CERTAIN
OF THE SUBSIDIARIES GUARANTIES AND SECURITY DOCUMENTS, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, in
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each case located within the City of New York and, by execution and delivery of
this Agreement, each Credit Agreement Party hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each Credit Agreement Party hereby
irrevocably designates, appoints and empowers Corporation Service Company, with
offices on the Restatement Effective Date at ββ βββββ ββββββ, ββββββ, ββ βββββ,
as its designee, appointee and agent to receive, accept and acknowledge for and
on its behalf, and in respect of its property, service of any and all legal
process, summons, notices and documents which may be served in any such action
or proceeding. If for any reason such designee, appointee and agent shall cease
to be available to act as such, each Credit Agreement Party agrees to designate
a new designee, appointee and agent in New York City on the terms and for the
purposes of this provision reasonably satisfactory to the Administrative Agent
under this Agreement. Each Credit Agreement Party hereby further irrevocably
waives any claim that any such courts lack jurisdiction over such Credit
Agreement Party, and agrees not to plead or claim, in any legal action or
proceeding with respect to this Agreement or any other Credit Document brought
in any of the aforesaid courts, that any such court lacks jurisdiction over such
Credit Agreement Party. Each Credit Agreement Party further irrevocably consents
to the service of process in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such Credit
Agreement Party, as the case may be, at its address for notices pursuant to
Section 13.03, such service to become effective 30 days after such mailing. Each
Credit Agreement Party hereby irrevocably waives any objection to such service
of process and further irrevocably waives and agrees not to plead or claim in
any action or proceeding commenced hereunder or under any other Credit Document
that service of process was in any way invalid or ineffective. Nothing herein
shall affect the right of any Agent, the Collateral Agent, any Lender or the
holder of any Note to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Credit Agreement
Party in any other jurisdiction.
(b) EACH CREDIT AGREEMENT PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with each Credit
Agreement Party and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective (subject to
the immediately succeeding sentence) on the date (the "Restatement Effective
Date") on which (i) each Credit Agreement Party, Original Lenders constituting
the Original Required Lenders, each Consenting Tranche C Term Loan Lender, each
Lender with a Tranche B Term Loan
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Commitment, each Lender with a Tranche C Term Loan Commitment, each Lender with
a Credit-Linked Commitment, each Agent, each Issuing Lender of an Existing
Letter of Credit, each Bank Guaranty Issuer of an Existing Bank Guaranty and the
Lead Arranger shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same (including by way of
facsimile transmission) to the Administrative Agent and (ii) the other
conditions contained in Sections 5 and 6 are met to the satisfaction of the
Administrative Agent and the Required Lenders. Notwithstanding anything to the
contrary contained in the immediately preceding sentence, any amendments to the
Original Credit Agreement effected pursuant to the amendment and restatement
thereof on the Restatement Effective Date pursuant to this Agreement, to the
extent requiring the consent of Original Lenders in excess of that required to
meet the definition of Original Required Lenders, shall instead become effective
on the Restatement Effective Date, but immediately after giving effect thereto
(at which time 100% of the Lenders hereunder, after giving effect to the
prepayments required on the Restatement Effective Date, shall provide such
consents by their execution and delivery of copies hereof). Unless the
Administrative Agent has received actual notice from any Lender that the
conditions contained in Sections 5 and 6 have not been met to its satisfaction,
upon the satisfaction of the condition described in clause (i) of the
immediately preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the immediately
preceding sentence have been met, then the Restatement Effective Date shall be
deemed to have occurred, regardless of any subsequent determination that one or
more of the conditions thereto had not been met (although the occurrence of the
Restatement Effective Date shall not release any Credit Party from any liability
for failure to satisfy one or more of the applicable conditions contained in
Section 5 or 6). The Administrative Agent will give each Credit Agreement Party
and each Lender prompt written notice of the occurrence of the Restatement
Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of the following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note or extend the
stated maturity of any Letter of Credit or Bank Guaranty beyond the CL Maturity
Date or extend the duration of any Interest Period beyond six months, or reduce
the rate or extend the time of payment of interest (other than as a result of
any waiver of the applicability of any post-default increase in interest rates)
or Fees thereon, or reduce the principal amount thereof (except to the extent
paid in cash) (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i), notwithstanding the
fact that such amendment or modification actually results in such a reduction),
(ii) release all or substantially all of the Collateral (except as expressly
provided in the Credit Documents) under all the Security Documents, (iii) amend,
modify or waive any provision of this Section 13.12 (except for technical
amendments with
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respect to additional extensions of credit pursuant to this Agreement which
afford the protections to such additional extensions of credit of the type
provided to the Term Loans and Credit-Linked Commitments on the Restatement
Effective Date), (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans and Credit-Linked Commitments are included
on the Restatement Effective Date), (v) consent to the assignment or transfer by
any Credit Agreement Party of any of its rights and obligations under this
Agreement, or (vi) release any Credit Agreement Party Guaranty or waive
compliance by any Credit Agreement Party with its payment obligations under its
Credit Agreement Party Guaranty; provided, further, that no such change, waiver,
discharge or termination shall (p) amend, modify or waive any condition
precedent set forth in Section 6 with respect to the issuance of Letters of
Credit or Bank Guaranties, without the written consent of the Majority Lenders
holding Credit-Linked Commitments, (q) increase the Commitments of any Lender
over the amount thereof then in effect without the consent of such Lender (it
being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any
Lender, and that an increase in the available portion of any Commitment of any
Lender shall not constitute an increase in the Commitment of such Lender), (r)
without the consent of each Issuing Lender affected and Bank Guaranty Issuer
thereby, amend, modify or waive any provision of Section 2 or alter its rights
or obligations with respect to Letters of Credit or Bank Guaranties, (s) without
the consent of the Administrative Agent, amend, modify or waive any provision of
Section 12 as same applies to the Administrative Agent or any other provision as
same relates to the rights or obligations of the Administrative Agent, (t)
without the consent of each Agent affected thereby, amend, modify or waive any
provision of Section 12 as same applies to such Agent or any other provision as
same relates to the rights or obligations of such Agent, (u) without the consent
of the Collateral Agent, amend, modify or waive any provision relating to the
rights or obligations of the Collateral Agent, (v) except in cases where
additional extensions of term loans are being afforded substantially the same
treatment afforded to the Term Loans pursuant to this Agreement as in effect on
the Restatement Effective Date, without the consent of the Majority Lenders of
each Tranche which is being allocated a lesser prepayment, repayment or
commitment reduction as a result of the actions described below, alter the
required application of any prepayments or repayments (or commitment reduction),
as between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding
Section 4.02(b)) (although the Required Lenders may waive, in whole or in part,
any such prepayment, repayment or commitment reduction, so long as the
application, as amongst the various Tranches, of any such prepayment, repayment
or commitment reduction which is still required to be made is not altered), (w)
without the consent of the Majority Lenders of the respective Tranche affected
thereby, amend the definition of Majority Lenders (it being understood that,
with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Majority
Lenders on substantially the same basis as the extensions of Loans and
Commitments are included on the Restatement Effective Date), (x) except in cases
where additional extensions of credit are being afforded substantially the same
treatment afforded to the Term Loans and Credit-Linked Commitments pursuant to
Section 1.14 (as in effect on the Restatement Effective Date) and except for
technical amendments which are consistent with the intent of the provisions of
such
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Section and do not adversely affect the protections afforded to the Lenders
pursuant to said Section, without the consent of the Majority Lenders of each
Tranche adversely affected thereby, amend, modify or waive any provisions of
Section 1.14; (y) without the consent of the Supermajority Lenders of the
respective affected Tranche, reduce the amount of or extend the date of, any
Scheduled Repayment under such Tranche (except that, if additional Loans are
made pursuant to a given Tranche, the Scheduled Repayments of such Tranche may
be increased on a proportionate basis without the consent otherwise required by
this clause (y)), or amend the definition of Supermajority Lenders (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Supermajority Lenders on substantially the same basis as the extensions of Loans
and Commitments are included on the Restatement Effective Date) or (z) without
the consent of (A) the Deposit Bank, amend, modify or waive any provision
relating to the rights or obligations of the Deposit Bank or (B) the
Intermediate Holdco Paying Agent, amend, modify or waive any provision relating
to the rights or obligations of the Intermediate Holdco Paying Agent.
Notwithstanding anything to the contrary contained above in this Section
13.12(a), the Administrative Agent and/or the Collateral Agent shall be
permitted (x) to enter into such amendments and/or modifications to the Foreign
Subsidiaries Guaranty and the Foreign Security Documents which may be required
in the discretion of the Administrative Agent and/or the Collateral Agent which
are of a technical nature and/or are, in the judgment of the Collateral Agent,
required by applicable law, in the interests of the Secured Creditors or (in the
case of Foreign Security Documents) necessary or desirable to preserve,
maintain, perfect and/or protect the security interests purported to the granted
by the respective Foreign Security Documents and (y) to enter into such releases
of Collateral pledged pursuant to Foreign Security Documents as may be
reasonably requested by the U.S. Borrower for legitimate operational reasons
(e.g., the transfer of Property from one jurisdiction to another), so long as
the Fair Market Value of all Collateral so subject to release (as determined in
good faith by the U.S. Borrower) at any time does not exceed $5,000,000.
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then Holdings
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders (or, at the
option of Holdings if the respective Lender's consent is required with respect
to less than all Tranches (or related Commitments), to replace only the
respective Tranche or Tranches of Commitments (and related Obligations and, if
applicable, Credit-Linked Deposits) and/or Loans of the respective
non-consenting Lender which gave rise to the need to obtain such Lender's
individual consent) with one or more Replacement Lenders pursuant to Section
1.13 so long as at the time of such replacement, each such Replacement Lender
consents to the proposed change, waiver, discharge or termination or (B)
terminate each Credit-Linked Commitment and/or Incremental Term Loan Commitment
of such non-consenting Lender (if such Lender's consent is required as a result
of such Credit-Linked Commitment and/or Incremental Term Loan Commitment),
and/or repay outstanding Obligations under each Tranche of such Lender which
gave rise to the need to obtain such Lender's consent, in accordance with
Sections 3.02(b) and/or 4.01, provided that, unless the Commitments which are
terminated and Loans and other Obligations which are repaid pursuant
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to preceding clause (B) are immediately replaced in full at such time through
the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans and of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to preceding clause
(B), the Required Lenders (determined both (x) after giving effect to the
proposed action and (y) as if the Commitments, Loans and related Obligations
being terminated and/or repaid (and not replaced) were not outstanding) shall
specifically consent thereto, provided, further, that Holdings shall not have
the right to replace a Lender, terminate its Commitment or repay its Loans or
other Obligations solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clause (a)
above of this Section 13.12, the respective Borrower, the Administrative Agent
and each Incremental Loan Lender may, in accordance with the provisions of
Section 1.15, enter into an Incremental Term Loan Commitment Agreement, provided
that after the execution and delivery by the respective Borrower, the
Administrative Agent and each such Incremental Loan Lender of such Incremental
Term Loan Commitment Agreement, such Incremental Term Loan Commitment Agreement
may thereafter only be modified in accordance with the requirements of clause
(a) above of this Section 13.12.
(d) For purposes of Section 13.12(a), (i) a Voting Participant shall
be deemed to be a "Lender" holding the portion of the Credit-Linked Commitment
(and related Obligations), Incremental Term Loan Commitment and/or outstanding
Term Loans of a given Tranche of any Lender (other than a Defaulting Lender) in
which it purchased a participation (and to have the voting rights of such Lender
for the respective such Tranche) and (ii) a Lender (other than a Defaulting
Lender) which has sold a participation in a portion of its Credit-Linked
Commitment (and related Obligations), Incremental Term Loan Commitment and/or
outstanding Term Loans of any Tranche to a Voting Participant shall be deemed to
hold a Credit-Linked Commitment (and related Obligations), Incremental Term Loan
Commitment or outstanding Term Loans of the respective Tranche, as the case may
be, in each case, as reduced by the amount of the participations therein sold to
a Voting Participant.
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2A.06, 2B.06, 4.04, 12.07, 13.01 and 13.17,
shall survive the execution and delivery of this Agreement, the making of the
Loans and the issuance of the Letters of Credit and Bank Guaranties and
repayment in full of the Loans and the other Obligations. With respect to the
Original Lenders and Original Agents, all indemnities set forth in the Original
Credit Agreement, including without limitation, in Sections 1.10, 1.11, 2A.06,
2B.06, 4.04, 12.07, 13.01 and 13.17 thereof shall survive the amendment and
restatement of the Original Credit Agreement pursuant to this Agreement and the
repayment of any outstanding Obligations (as defined in the Original Credit
Agreement) thereunder, as fully as if same were set forth herein in their
entirety.
13.14 Domicile of Loans and Commitments. Each Lender may transfer and
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Lender. Notwithstanding anything to the
contrary contained herein, to the extent that a transfer of Loans pursuant to
this Section 13.14 would, at the time of such transfer, result in increased
costs under Section 1.10, 1.11, 2A.06, 2B.06 or 4.04 from those being charged by
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the respective Lender prior to such transfer, then the Borrowers shall not be
obligated to pay such increased costs (although the Borrowers shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective transfer).
13.15 Confidentiality. (a) Each of the Lenders agrees that it will use
its reasonable efforts not to disclose without the prior consent of any Credit
Agreement Party (other than to its directors, employees, auditors, counsel or
other professional advisors, to affiliates or to another Lender if the Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information) any information with
respect to Holdings or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement; provided that any Lender may disclose any
such information (a) as has become generally available to the public, (b) as may
be required or appropriate (x) in any report, statement or testimony submitted
to any municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors or (y) in connection with any request
or requirement of any such regulatory body, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, (d) to comply with any law, order, regulation or ruling applicable
to such Lender, (e) to the extent reasonably required in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder and (f) to any creditor or
any prospective transferee or participant in connection with any contemplated
transfer or participation of any of the Obligations or any interest therein by
such Lender; provided that such creditor or prospective transferee or
participant agrees to be bound by this Section 13.15 to the same extent as such
Lender.
(b) Each Credit Agreement Party hereby acknowledges and agrees that
each Lender may share with any of its affiliates or its investment advisors any
information related to Holdings or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
such entities), provided that such Persons shall be subject to the provisions of
this Section 13.15 to the same extent as such Lender and shall only use such
information in connection with matters relating to this Agreement.
(c) Each Credit Agreement Party hereby represents and acknowledges
that, to the best of its knowledge, neither any Agent nor any Lender, nor any
employees or agents of, or other persons affiliated with, any Agent or any
Lender, have directly or indirectly made or provided any statement (oral or
written) to such Credit Agreement Party or to any of its employees or agents, or
other persons affiliated with or related to such Credit Agreement Party (or, so
far as such Credit Agreement Party is aware, to any other person), as to the
potential tax consequences of the Transaction.
(d) Neither the Agents nor the Lenders provide accounting, tax or
legal advice. Notwithstanding any express or implied claims of exclusivity or
proprietary rights, each Credit Agreement Party, each Agent and each Lender
hereby agree and acknowledge that each Credit Agreement Party, each Agent and
each Lender (and each of their employees, representatives or other agents) are
authorized to disclose to any and all persons, beginning immediately upon
commencement of their discussions and without limitation of any kind, the tax
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treatment and tax structure of the Transaction, and all materials of any kind
(including opinions or other tax analyses) that are provided to any Credit
Agreement Party, any Agent or any Lender relating to such tax treatment and tax
structure. In this regard, each Credit Agreement Party, each Agent and each
Lender acknowledge and agree that the disclosure of the tax treatment and tax
structure of the Transaction is not limited in any way by an express or implied
understanding or agreement, oral or written (whether or not such understanding
or agreement is legally binding). For purposes of this authorization, "tax"
means United States Federal income tax, "tax treatment" means the purported or
claimed Federal income tax treatment of the transaction, and "tax structure"
means any fact that may be relevant to understanding the purported or claimed
Federal income tax treatment of the transaction. This paragraph is intended to
reflect the understanding of each Credit Agreement Party, each Agent and each
Lender that the Transaction is not a "confidential transaction" as that phrase
is used in Treasury Regulation Section 1.6011-4(b)(3)(i), and shall be
interpreted in a manner consistent therewith. Nothing herein is intended to
imply that any of each Credit Agreement Party, each Agent and each Lender made
or provided a statement, oral or written, to, or for the benefit of, any of each
other as to any potential tax consequences that are related to, or may result
from, the Transaction.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrowers hereby designate the Administrative
Agent, and the Administrative Agent agrees, to serve as the Borrowers' agent,
solely for purposes of this Section 13.17, to maintain a register at one of its
offices in New York, New York (the "Register") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment in respect of the principal amount of the Loans
of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrowers' obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and/or Loans prior to such recordation all amounts
owing to the transferor with respect to such Commitments and/or Loans shall
remain owing to the transferor. The registration of an assignment or transfer of
all or part of any Commitments and/or Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Commitment and/or Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Commitment and/or
Loan, and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Lender and/or the new Lender. The
registration of any provision of Incremental Term Loan Commitments pursuant to
Section 1.15 shall be recorded by the Administrative Agent on the Register only
upon the acceptance of the Administrative Agent of a properly executed and
delivered Incremental Term Loan Commitment
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Agreement. Coincident with the delivery of such Incremental Term Loan Commitment
Agreement for acceptance and registration of the provision of an Incremental
Term Loan Commitment, or as soon thereafter as practicable, to the extent
requested by such Incremental Term Loan Lenders, Incremental Term Notes shall be
issued, at the respective Borrower's expense, to such Incremental Term Loan
Lenders, to be in conformity with Section 1.05 (with appropriate modification)
to the extent needed to reflect the Incremental Term Loan Commitments and
outstanding Incremental Term Loans made by such Incremental Term Loan Lender.
The Borrowers agree to indemnify the Administrative Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature that may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.17.
13.18 English Language. This Agreement and all other Credit Documents
shall be in the English language, except as required by applicable local law
and, with respect to each of the Security Documents governed by the laws of
Italy or otherwise related to Collateral located in Italy, as the Administrative
Agent may reasonably require (in which event certified English translations
thereof shall, upon the request of the Administrative Agent, be provided by
Holdings to the Administrative Agent). All documents, certificates, reports or
notices to be delivered or communications to be given or made by any party
hereto pursuant to the terms of this Agreement or any other Credit Document
shall be in the English language or, if originally written in another language,
shall, upon request of the Administrative Agent, be accompanied by an accurate
English translation upon which the other parties hereto shall have the right to
rely for all purposes of this Agreement and the other Credit Documents.
13.19 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in Qualified Jurisdictions;
Special Provisions Regarding Foreign Security Documents and Secured Hedge
Counterparties. (a) The parties hereto acknowledge and agree that the provisions
of the various Security Documents executed and delivered by the Credit Parties
require that, among other things, all promissory notes executed by, and Equity
Interests in, various Persons owned by the respective Credit Party (to the
extent not constituting Excluded Collateral) be pledged, and delivered for
pledge, pursuant to the Security Documents. The parties hereto further
acknowledge and agree that each Credit Party shall be required to take all
actions under the laws of the jurisdiction in which such Credit Party is
organized to create and perfect all security interests granted pursuant to the
various Security Documents and to take all actions under the laws of each
Qualified Jurisdiction to perfect the security interests in the Equity Interests
of, and promissory notes issued by, any Person organized under the laws of said
jurisdictions (in each case, to the extent said Equity Interests or promissory
notes are owned by any Credit Party and do not constitute Excluded Collateral).
Except as provided in the immediately preceding sentence, to the extent any
Security Document requires or provides for the pledge of promissory notes issued
by, or Equity Interests in, any Person organized under the laws of a
jurisdiction other than those specified in the immediately preceding sentence,
it is acknowledged that, as of the Restatement Effective Date, no actions have
been required to be taken to perfect, under local law of the jurisdiction of the
Person who issued the respective promissory notes or whose Equity Interests are
pledged, under the Security Documents. The Credit Agreement Parties hereby agree
that, following any request by the Administrative Agent or Required Lenders to
do so, each Credit Agreement Party shall, and shall cause its Subsidiaries to,
take such actions (including, without limitation, the execution of Additional
Security Documents, the making of any filings and the delivery of
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appropriate legal opinions) under the local law of any jurisdiction with respect
to which such actions have not already been taken as are determined by the
Administrative Agent or Required Lenders to be necessary or desirable in order
to fully perfect, preserve or protect the security interests granted pursuant to
the various Security Documents under the laws of such jurisdictions. If
requested to do so pursuant to this Section 13.19(a), all such actions shall be
taken in accordance with the provisions of this Section 13.19(a) and Section
8.11 and within the time periods set forth therein. All conditions and
representations contained in this Agreement and the other Credit Documents shall
be deemed modified to the extent necessary to effect the foregoing and so that
same are not violated by reason of the failure to take actions under local law
(but only with respect to Equity Interests in, and promissory notes issued by,
Persons organized under laws of jurisdictions other than Qualified
Jurisdictions) not required to be taken in accordance with the provisions of
this Section 13.19(a), provided that to the extent any representation or
warranty would not be true because the foregoing actions were not taken, the
respective representation of warranties shall be required to be true and correct
in all material respects at such time as the respective action is required to be
taken in accordance with the foregoing provisions of this Section 13.19(a) or
pursuant to Section 8.11.
(b) The parties hereto acknowledge and agree that certain Foreign
Security Documents executed and delivered by the Credit Parties on or prior to
the Restatement Effective Date secure, inter alia, obligations of any Lender (or
any affiliate of a Lender) which is a counterparty to certain Interest Rate
Protection Agreements and Other Hedging Agreements (as further provided in each
such Foreign Security Document) and that it is the parties intent that each such
Foreign Security Document shall be amended, as provided in Article III of the
Foreign Subsidiaries Guaranty Amendment and Acknowledgement, such that (after
giving effect to such amendment) the foregoing secured counterparties shall be
amended to include the Secured Hedge Counterparties. Notwithstanding the
foregoing, the parties hereto further acknowledge and agree that, as of the
Restatement Effective Date, no other amendments, modifications or supplements to
the foregoing Foreign Security Documents under the laws of any jurisdiction to
effect the intent in the foregoing sentence have occurred. The Credit Agreement
Parties hereby agree that, within 90 days after the Restatement Effective Date
(or such longer period as may be agreed by the Administrative Agent), each
Credit Agreement Party shall, and shall cause its Subsidiaries to, take such
actions (including, without limitation, amending, modifying or supplementing
each such Foreign Security Document and the delivery of appropriate legal
opinions) under the local law of any jurisdiction with respect to which such
actions have not already been taken as are determined by the Administrative
Agent or Required Lenders to be necessary or desirable in order to effect the
foregoing amendments to each such Foreign Security Document. All conditions and
representations contained in this Agreement and the other Credit Documents shall
be deemed modified to the extent necessary to effect the foregoing and so that
same are not violated by reason of the failure to take actions under local law
not required to be taken in accordance with the provisions of this Section
13.19(b), provided that to the extent any representation or warranty would not
be true because the foregoing actions were not taken, the respective
representation of warranties shall be required to be true and correct in all
material respects at such time as the respective action is required to be taken
in accordance with the foregoing provisions of this Section 13.19(b) or pursuant
to Section 8.11.
13.20 Powers of Attorney; etc. Each of Holdings and the U.S. Borrower
is hereby authorized by, and on behalf of, the Bermuda Borrower to give Notices
of Borrowing,
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Notices of Conversion and other notices and directions in connection with the
extensions of credit and repayments thereof to be made pursuant to this
Agreement to the Bermuda Borrower (including without limitation notices as to
the application of proceeds of such extensions of credit). The Bermuda Borrower
hereby grants to Holdings and the U.S. Borrower an irrevocable power-of
attorney, in the Bermuda Borrower's name, to take the actions contemplated above
in this Section 13.20 and in the last sentence of Section 1.13 hereof.
Furthermore, the Bermuda Borrower agrees that the Agents and the Lenders may at
any time rely upon any notices, instructions or other information furnished by
Holdings or the U.S. Borrower.
13.21 Waiver of Sovereign Immunity. Each of the Credit Agreement
Parties, in respect of itself, its Subsidiaries, its process agents, and its
properties and revenues, hereby irrevocably agrees that, to the extent that such
Credit Agreement Party, its Subsidiaries or any of its properties has or may
hereafter acquire any right of immunity, whether characterized as sovereign
immunity or otherwise, from any legal proceedings, whether in the United States,
any other Qualified Jurisdiction or elsewhere, to enforce or collect upon the
Loans or any Credit Document or any other liability or obligation of such Credit
Agreement Party or any of its Subsidiaries related to or arising from the
transactions contemplated by any of the Credit Documents, including, without
limitation, immunity from service of process, immunity from jurisdiction or
judgment of any court or tribunal, immunity from execution of a judgment, and
immunity of any of its property from attachment prior to any entry of judgment,
or from attachment in aid of execution upon a judgment, such Credit Agreement
Party, for itself and on behalf of its Subsidiaries, hereby expressly waives, to
the fullest extent permissible under applicable law, any such immunity, and
agrees not to assert any such right or claim in any such proceeding, whether in
the United States, any other Qualified Jurisdiction, or elsewhere. Without
limiting the generality of the foregoing, each Credit Agreement Party further
agrees that the waivers set forth in this Section 13.21 shall have the fullest
extent permitted under the Foreign Sovereign Immunities Act of 1976 of the
United States and are intended to be irrevocable for purposes of such Act.
13.22 Judgment Currency. (a) The Credit Parties' obligations hereunder
and under the other Credit Documents to make payments in Dollars (or, in the
case of a Letter of Credit denominated in an Alternative Currency, the Dollar
Equivalent thereof) (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by any
Agent or the respective Lender of the full amount of the Obligation Currency
expressed to be payable to the such Agent or such Lender under this Agreement or
the other Credit Documents. If for the purpose of obtaining or enforcing
judgment against any Credit Party in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made at the Dollar Equivalent thereof, and, in the case of other currencies, the
rate of exchange (as quoted by the Administrative Agent or if the Administrative
Agent does not quote a rate of exchange on such currency, by a known dealer in
such currency designated by the Administrative Agent) determined, in each case,
as of the day on which the judgment is given (such day being hereinafter
referred to as the "Judgment Currency Conversion Date").
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(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the Borrower covenants and agrees to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the Dollar Equivalent or any other
rate of exchange for this Section 13.22, such amounts shall include any premium
and costs payable in connection with the purchase of the Obligation Currency.
13.23 Special Acknowledgments. By their execution and delivery hereof,
the Lenders party hereto hereby acknowledge (i) that the guarantee of each
Bermuda Partnership Partner made pursuant to the U.S. Subsidiaries Guaranty is
limited to the Obligations of the U.S. Borrower under the Credit Documents and
the obligations of the U.S. Borrower and its Domestic Subsidiaries under
Interest Rate Protection Agreements and Other Hedging Agreements with Secured
Hedge Counterparties, all on the terms as more specifically provided therein,
(ii) the Bermuda Partnership has not entered into any Credit Documents and, as
such, is not a Credit Party (but is otherwise subject to the provisions of
Section 9.01(c)) and (iii) the obligations secured pursuant to the Security
Documents are not secured by any Excluded Collateral.
13.24 Special Provisions Relating to Amendment and Restatement. (a)
The Required Lenders under, and as defined in, the Original Credit Agreement
hereby consent to the "refinancing indebtedness" under this Agreement being
treated as "indebtedness pursuant to the Credit Agreement" for purposes of the
U.S. Pledge Agreement and the Intercompany Subordination Agreement. The U.S.
Borrower, for its part, hereby gives notice that the refinancing indebtedness
under this Agreement shall be treated as "issued under the Credit Agreement" for
purposes of the U.S. Pledge Agreement and the Intercompany Subordination
Agreement.
(b) The parties hereto acknowledge and agree that:
(i) Holdings and its Subsidiaries (as defined in the Original Credit
Agreement) executed and delivered the Security Documents (as defined in the
Original Credit Agreement) in favor of the Collateral Agent on behalf of
the Secured Creditors (as defined in the Original Credit Agreement) to
secure the payment and performance of, inter alia, the Obligations (as
defined in the respective such Security Documents);
(ii) the security interests granted to the Collateral Agent on behalf
of the Secured Creditors pursuant to the Security Documents (as defined in
the Original Credit Agreement) shall remain outstanding and in full force
and effect, without interruption or impairment of any kind, but subject to
the provisions of the Intercreditor Agreement, in accordance with the terms
of such Security Documents and shall continue to secure the Obligations (as
defined in such Security Documents);
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(iii) the Obligations represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Original Credit Agreement) arising in
connection with the Original Credit Agreement and other Credit Documents
(as defined in the Original Credit Agreement) executed in connection
therewith; and
(iv) the provisions of the Original Credit Agreement, to the extent
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof; (b) the Notes
restate, renew, extend, consolidate, amend, modify, replace, are
substituted for and supersede, but do not extinguish, the Obligations (as
defined in the Original Credit Agreement) evidenced by the Notes (as
defined in the Original Credit Agreement) issued pursuant to the Original
Credit Agreement; and (c) the execution and delivery of this Agreement, and
the performance by Credit Agreement Parties of their respective obligations
hereunder shall not constitute a novation.
13.25 USA Patriot Act. Each Lender subject to the USA PATRIOT ACT
(Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) hereby notifies
each Credit Agreement Party that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Credit
Agreement Parties and the other Credit Parties and other information that will
allow such Lender to identify the Credit Agreement Parties and the other Credit
Parties in accordance with the Act.
13.26 Other Liens on Collateral; Terms of Intercreditor Agreement;
Etc. (a) EACH LENDER HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT LIENS
SHALL BE CREATED ON THE COLLATERAL PURSUANT TO THE ABL CREDIT AGREEMENT AND THE
ABL CREDIT DOCUMENTS (AS DEFINED THEREIN), WHICH LIENS (x) TO THE EXTENT CREATED
WITH RESPECT TO ABL PRIORITY COLLATERAL, SHALL BE SENIOR TO THE LIENS CREATED
UNDER THIS AGREEMENT AND THE RELATED CREDIT DOCUMENTS (WITH THE LIENS SO CREATED
HEREUNDER AND UNDER THE OTHER CREDIT DOCUMENTS ON ABL PRIORITY COLLATERAL BEING
SUBORDINATED TO SUCH LIENS PURSUANT TO THE TERMS OF THE INTERCREDITOR AGREEMENT)
AND (Y) TO THE EXTENT CREATED WITH RESPECT TO TL PRIORITY COLLATERAL, SHALL BE
REQUIRED TO BE SUBJECT TO THE SUBORDINATION PROVISIONS (TO THE EXTENT
APPLICABLE) OF THE INTERCREDITOR AGREEMENT. THE INTERCREDITOR AGREEMENT ALSO HAS
OTHER PROVISIONS WHICH ARE BINDING UPON THE LENDERS AND THE SECURED HEDGE
COUNTERPARTIES PURSUANT TO THIS AGREEMENT. PURSUANT TO THE EXPRESS TERMS OF
SECTION 13.26 OF THE INTERCREDITOR AGREEMENT, IN THE EVENT OF ANY CONFLICT
BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND ANY OF THE CREDIT
DOCUMENTS, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND
CONTROL.
(b) EACH LENDER AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT AND THE
ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE
LENDER, AND TO TAKE ALL
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ACTIONS (AND EXECUTE ALL DOCUMENTS) REQUIRED (OR DEEMED ADVISABLE) BY IT IN
ACCORDANCE WITH THE TERMS OF THE INTERCREDITOR AGREEMENT.
(c) THE PROVISIONS OF THIS SECTION 13.26 ARE NOT INTENDED TO SUMMARIZE
ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT, THE FORM OF WHICH IS
ATTACHED AS AN EXHIBIT TO THIS AGREEMENT. REFERENCE MUST BE MADE TO THE
INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.
EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE
INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT (AND
NONE OF ITS AFFILIATES) MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE
SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR
AGREEMENT. EACH LENDER IS FURTHER AWARE THAT THE ADMINISTRATIVE AGENT AND THE
COLLATERAL AGENT IS ALSO ACTING IN AN ADMINISTRATIVE AND COLLATERAL AGENCY
CAPACITY UNDER, AND AS DEFINED IN, THE ABL CREDIT AGREEMENT AND THE ABL CREDIT
DOCUMENTS (AS DEFINED THEREIN), AND LENDER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION THERETO OR CAUSE OF ACTION ARISING THEREFROM.
13.27 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
1. Real Property. The actions relating to the Mortgages and Real
Property of Holdings and its Subsidiaries described on Part A of Schedule
XVIII shall be completed in accordance with Part A of said Schedule XVIII.
2. Actions by Various Foreign Subsidiaries Relating to Security
Documents. Holdings and its Subsidiaries shall be required to take the
actions specified in Part B of Schedule XVIII as promptly as practicable,
and in any event within the time periods set forth in Part B of said
Schedule XVIII. The provisions of Part B of said Schedule XVIII shall be
deemed incorporated by reference herein as fully as if set forth herein in
its entirety.
3. Miscellaneous Actions By Various Subsidiaries of Holdings. Holdings
and its Subsidiaries shall be required to take the actions specified in
Part C of Schedule XVIII as promptly as practicable, and in any event
within the time periods set forth in Part C of said Schedule XVIII. The
provisions of Part C of said Schedule XVIII shall be deemed incorporated by
reference herein as fully as if set forth herein in its entirety.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
would not be true because the foregoing actions were not taken on the
Restatement Effective Date the respective representation and warranty shall be
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required to be true and correct in all material respects at the time the
respective action is taken (or was required to be taken) in accordance with the
foregoing provisions of this Section 13.27 and (y) all representations and
warranties relating to the Security Documents shall be required to be true
immediately after the actions required to be taken by this Section 13.27 have
been taken (or were required to be taken). The acceptance of the benefits of
each Credit Event shall constitute a covenant and agreement by each Credit
Agreement Party to each of the Lenders that the actions required pursuant to
this Section 13.27 will be, or have been, taken within the relevant time periods
referred to in this Section 13.27 and that, at such time, all representations
and warranties contained in this Credit Agreement and the other Credit Documents
shall then be true and correct without any modification pursuant to this Section
13.27. The parties hereto acknowledge and agree that the failure to take any of
the actions required above, within the relevant time periods required above,
shall give rise to an immediate Event of Default pursuant to this Agreement.
Section 14. Credit Agreement Party Guaranty.
14.01 The Guaranty. In order to induce the Lenders to enter into this
Agreement and to extend credit hereunder and to induce the Secured Hedge
Counterparties to enter into Interest Rate Protection Agreements or Other
Hedging Agreements, and in recognition of the direct benefits to be received by
each Credit Agreement Party from the proceeds of the Loans, the issuance of the
Letters of Credit and Bank Guaranties the entering into of Interest Rate
Protection Agreements or Other Hedging Agreements, each Credit Agreement Party
hereby agrees with the Lenders and the Secured Hedge Counterparties as follows:
each Credit Agreement Party hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety the full and prompt payment when
due, whether upon maturity, acceleration or otherwise, of any and all of its
Relevant Guaranteed Obligations to the Guaranteed Creditors. If any or all of
the Relevant Guaranteed Obligations of any Credit Agreement Party to the
Guaranteed Creditors becomes due and payable hereunder, each Credit Agreement
Party unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses which may be
incurred by the Guaranteed Creditors in collecting any of the Relevant
Guaranteed Obligations. This Credit Agreement Party Guaranty is a guaranty of
payment and not of collection. This Credit Agreement Party Guaranty is a
continuing one and all liabilities to which it applies or may apply under the
terms hereof shall be conclusively presumed to have been created in reliance
hereon. If claim is ever made upon any Guaranteed Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Relevant Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including any Relevant Guaranteed Party), then and
in such event the respective Credit Agreement Party agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such
Credit Agreement Party, notwithstanding any revocation of this Credit Agreement
Party Guaranty or any other instrument evidencing any liability of any Relevant
Guaranteed Party, and each Credit Agreement Party shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the same
extent as if such amount had never originally been received by any such payee.
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14.02 Bankruptcy. Additionally, each Credit Agreement Party
unconditionally and irrevocably guarantees the payment of any and all of the
Relevant Guaranteed Obligations to the Guaranteed Creditors whether or not due
or payable by any Relevant Guaranteed Party upon the occurrence of any of the
events specified in Section 10.05, and unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand.
14.03 Nature of Liability. The liability of each Credit Agreement
Party hereunder is exclusive and independent of any security for or other
guaranty of the Relevant Guaranteed Obligations whether executed by such Credit
Agreement Party, any other guarantor or by any other party, and the liability of
each Credit Agreement Party hereunder is not affected or impaired by (a) any
direction as to application of payment by any Relevant Guaranteed Party or any
other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Relevant
Guaranteed Obligations, or (c) any payment on or in reduction of any such other
guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by any Relevant Guaranteed Party, or (e) any
payment made to the Guaranteed Creditors on the Relevant Guaranteed Obligations
which any such Guaranteed Creditor repays to any Relevant Guaranteed Party
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Credit Agreement Party
waives any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding, or (f) any action or inaction of the type
described in Section 14.05, or (g) the lack of validity or enforceability of any
Credit Document or any other instrument relating thereto.
14.04 Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Relevant Guaranteed Obligations or of
any security therefor shall affect, impair or be a defense to this Credit
Agreement Party Guaranty, and this Credit Agreement Party Guaranty shall be
primary, absolute and unconditional notwithstanding the occurrence of any event
or the existence of any other circumstances which might constitute a legal or
equitable discharge of, or a defense available to, a surety or guarantor except
indefeasible payment in full in cash of the Relevant Guaranteed Obligations. The
obligations of each Credit Agreement Party hereunder are independent of the
obligations of any Relevant Guaranteed Party, any other guarantor or any other
party and a separate action or actions may be brought and prosecuted against any
Credit Agreement Party whether or not action is brought against any Relevant
Guaranteed Party, any other guarantor or any other party and whether or not any
Relevant Guaranteed Party, any other guarantor or any other party be joined in
any such action or actions. Each Credit Agreement Party waives, to the full
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by any Relevant
Guaranteed Party or other circumstance that operates to toll any statute of
limitations as to such Relevant Guaranteed Party shall operate to toll the
statute of limitations as to the relevant Credit Agreement Party.
14.05 Authorization. Each Credit Agreement Party authorizes the
Guaranteed Creditors without notice or demand (except as shall be required by
applicable statute and cannot be waived), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Relevant
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Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and this Credit Agreement Party
Guaranty shall apply to the Relevant Guaranteed Obligations as so changed,
extended, renewed, increased or altered;
(b) take and hold security for the payment of the Relevant Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Relevant Guaranteed Obligations or any liabilities (including
any of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Relevant Guaranteed Party or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers, guarantors, any
Relevant Guaranteed Party or other obligors;
(e) settle or compromise any of the Relevant Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Relevant Guaranteed Party to their
respective creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Relevant Guaranteed Party to the Guaranteed
Creditors regardless of what liability or liabilities of such Relevant
Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any of the instruments
or agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Credit Document, any Interest Rate
Protection Agreement or Other Hedging Agreement or any of such other
instruments or agreements; and/or
(h) take any other action that would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of,
or a defense available to, such Credit Agreement Party from its liabilities
under this Credit Agreement Party Guaranty.
14.06 Reliance. It is not necessary for the Guaranteed Creditors to
inquire into the capacity or powers of any Relevant Guaranteed Party or the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any Relevant Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of any Relevant
Guaranteed Party now or hereafter owing to any Credit Agreement Party is hereby
subordinated to the Relevant Guaranteed Obligations of such Relevant Guaranteed
Party owing to the Guaranteed Creditors; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such
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indebtedness of such Relevant Guaranteed Party to such Credit Agreement Party
shall be collected, enforced and received by such Credit Agreement Party in
trust for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the
Relevant Guaranteed Obligations of such Relevant Guaranteed Party to the
Guaranteed Creditors, but without affecting or impairing in any manner the
liability of any Credit Agreement Party under the other provisions of this
Credit Agreement Party Guaranty. Prior to the transfer by any Credit Agreement
Party of any note or negotiable instrument evidencing any of the indebtedness of
any Relevant Guaranteed Party to such Credit Agreement Party, such Credit
Agreement Party shall ββββ such note or negotiable instrument with a legend that
the same is subject to this subordination. Without limiting the generality of
the foregoing, each Credit Agreement Party hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Credit Agreement Party Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code or otherwise) until all
Relevant Guaranteed Obligations have been irrevocably paid in full in cash.
14.08 Waiver. (a) Each Credit Agreement Party waives any right (except
as shall be required by applicable statute and cannot be waived) to require any
Guaranteed Creditor to (i) proceed against any other Relevant Guaranteed Party,
any other guarantor or any other party, (ii) proceed against or exhaust any
security held from any Relevant Guaranteed Party, any other guarantor or any
other party or (iii) pursue any other remedy in any Guaranteed Creditor's power
whatsoever. Each Credit Agreement Party waives any defense based on or arising
out of any defense of any Relevant Guaranteed Party, any other guarantor or any
other party, other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations, based on or arising out of the disability of any
Relevant Guaranteed Party, any other guarantor or any other party, or the
unenforceability of the Relevant Guaranteed Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of any Relevant
Guaranteed Party other than indefeasible payment in full in cash of the Relevant
Guaranteed Obligations. The Guaranteed Creditors may, at their election,
foreclose on any security held by the Administrative Agent, the Collateral Agent
or any other Guaranteed Creditor by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable (to the
extent such sale is permitted by applicable law), or exercise any other right or
remedy the Guaranteed Creditors may have against any Relevant Guaranteed Party
or any other party, or any security, without affecting or impairing in any way
the liability of any Credit Agreement Party hereunder except to the extent the
Relevant Guaranteed Obligations have been indefeasibly paid in full in cash.
Each Credit Agreement Party waives any defense arising out of any such election
by the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or remedy of
such Credit Agreement Party against any Relevant Guaranteed Party or any other
party or any security.
(b) Each Credit Agreement Party waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Credit Agreement Party Guaranty, and notices of the existence, creation
or incurring of new or additional Relevant Guaranteed Obligations. Each Credit
Agreement Party assumes all responsibility for being and keeping itself informed
of each Relevant Guaranteed Party's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Relevant
Guaranteed
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Obligations and the nature, scope and extent of the risks which such
Credit Agreement Party assumes and incurs hereunder, and agrees that the
Guaranteed Creditors shall have no duty to advise any Credit Agreement Party of
information known to them regarding such circumstances or risks.
(c) Until such time as the Relevant Guaranteed Obligations have been
paid in full in cash, each Credit Agreement Party hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this Credit
Agreement Party Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code, or otherwise) to the claims of the Guaranteed Creditors against
any Relevant Guaranteed Party or any other guarantor of the Relevant Guaranteed
Obligations and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Relevant Guaranteed Party or
any other guarantor which it may at any time otherwise have as a result of this
Credit Agreement Party Guaranty.
(d) Each U.S. Credit Agreement Party hereby acknowledges and affirms
that it understands that to the extent the Relevant Guaranteed Obligations are
secured by Real Property located in California, such U.S. Credit Agreement Party
shall be liable for the full amount of the liability hereunder notwithstanding
the foreclosure on such Real Property by trustee sale or any other reason
impairing such U.S. Credit Agreement Party's or any Guaranteed Creditor's right
to proceed against any Relevant Guaranteed Party or any other guarantor of the
Relevant Guaranteed Obligations. In accordance with Section 2856 of the
California Code of Civil Procedure, each U.S. Credit Agreement Party hereby
waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to such U.S. Credit Agreement Party by reason of Sections 2787 to
2855, inclusive, 2899 and 3433 of the California Code of Civil Procedure;
(ii) all rights and defenses that such U.S. Credit Agreement Party may
have because the Relevant Guaranteed Obligations are secured by Real
Property located in California, meaning, among other things, that: (A) the
Guaranteed Creditors may collect from such U.S. Credit Agreement Party
without first foreclosing on any real or personal property collateral
pledged by any Credit Party, and (B) if the Guaranteed Creditors foreclose
on any Real Property collateral pledged by any Credit Party, (1) the amount
of the Relevant Guaranteed Obligations may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and (2) the Guaranteed
Creditors may collect from such U.S. Credit Agreement Party even if the
Guaranteed Creditors, by foreclosing on the Real Property collateral, have
destroyed any right such U.S. Credit Agreement Party may have to collect
from any Relevant Guaranteed Party, it being understood that this is an
unconditional and irrevocable waiver of any rights and defenses such U.S.
Credit Agreement Party may have because the Relevant Guaranteed Obligations
are secured by Real Property (including, without limitation, any rights or
defenses based upon Section 580a, 580d or 726 of the California Code of
Civil Procedure); and
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(iii) all rights and defenses arising out of an election of remedies
by the Guaranteed Creditors, even though that election of remedies, such as
a nonjudicial foreclosure with respect to security for the Relevant
Guaranteed Obligations, has destroyed such U.S. Credit Agreement Party's
rights of subrogation and reimbursement against any Relevant Guaranteed
Party by the operation of Section 580d of the California Code of Civil
Procedure or otherwise.
(e) Each Credit Agreement Party warrants and agrees that each of the
waivers set forth above is made with full knowledge of its significance and
consequences and that if any of such waivers are determined to be contrary to
any applicable law of public policy, such waivers shall be effective only to the
maximum extent permitted by law.
14.09 Payments. All payments made by a Credit Agreement Party pursuant
to this Section 14 shall be made in the respective Applicable Currency in which
the Relevant Guaranteed Obligations are then due and payable (giving effect, in
the circumstances contemplated by Section 1.14, to any conversion occurring
pursuant thereto). All payments made by a Credit Agreement Party pursuant to
this Section 14 will be made without setoff, counterclaim or other defense, and
shall be subject to the provisions of Sections 4.03, 4.04 and 13.22.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
One ββββ Drive DHM HOLDING COMPANY, INC.
ββββββββ βββββββ, ββ βββββ
Telephone No.: (βββ) βββ-ββββ
Facsimile No.: (βββ) βββ-ββββ By
Attention: βββββββ ββββββ -------------------------------------
Name:
----------------------------------
Title:
---------------------------------
One ββββ Drive ββββ HOLDING COMPANY, LLC
ββββββββ βββββββ, ββ βββββ
Telephone No.: (βββ) βββ-ββββ
Facsimile No.: (βββ) βββ-ββββ By
Attention: βββββββ ββββββ -------------------------------------
Name:
----------------------------------
Title:
---------------------------------
One ββββ Drive ββββ FOOD COMPANY, INC.
ββββββββ βββββββ, ββ βββββ
Telephone No.: (βββ) βββ-ββββ
Facsimile No.: (βββ) βββ-ββββ By
Attention: βββββββ ββββββ -------------------------------------
Name:
----------------------------------
Title:
---------------------------------
One ββββ Drive SOLVEST, LTD.
ββββββββ βββββββ, ββ βββββ
Telephone No.: (βββ) βββ-ββββ
Facsimile No.: (βββ) βββ-ββββ By
Attention: βββββββ ββββββ -------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANC OF AMERICA SECURITIES LLC,
as Syndication Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NOVA SCOTIA,
Individually and as Co-Documentation
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
RABOBANK INTERNATIONAL,
Individually and as Co-Documentation
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SIGNATURE PAGE TO THE CREDIT AGREEMENT,
DATED AS OF MARCH 28, 2003, AMENDED AND
RESTATED AS OF APRIL 18, 2005 AND
FURTHER AMENDED AND RESTATED AS OF APRIL
12, 2006, AMONG DHM HOLDING COMPANY,
INC., ββββ HOLDING COMPANY, LLC, ββββ
FOOD COMPANY, INC., SOLVEST, LTD., THE
LENDERS FROM TIME TO TIME PARTY HERETO,
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, BANC OF AMERICA
SECURITIES LLC, AS SYNDICATION AGENT,
THE BANK OF NOVA SCOTIA AND RABOBANK
INTERNATIONAL, AS CO-DOCUMENTATION
AGENTS AND DEUTSCHE BANK SECURITIES
INC., AS LEAD ARRANGER AND SOLE BOOK
RUNNER
NAME OF INSTITUTION:
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------