EXECUTION COPY
Dated as of July 6, 2004
among
ARVINMERITOR, INC.
and
THE SUBSIDIARY
BORROWERS
FROM TIME TO TIME
PARTIES HERETO
as the Borrowers
THE INSTITUTIONS FROM
TIME TO TIME PARTIES HERETO AS LENDERS
BANK ONE, NA (MAIN
OFFICE CHICAGO)
as Administrative Agent
JPMORGAN CHASE BANK
and
CITICORP NORTH
AMERICA, INC.
as Syndication Agents
and
ABN AMRO BANK N.V.
BNP PARIBAS
and
UBS SECURITIES LLC
as Documentation Agents
X.X. XXXXXX
SECURITIES, INC.
and
CITIGROUP GLOBAL
MARKETS INC.
as Joint Lead Arrangers
and Joint Book Runners
SIDLEY XXXXXX XXXXX
& XXXX LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
Section Page
ARTICLE I: DEFINITIONS AND GENERALLY APPLICABLE PRINCIPLES.......................................................1
1.1. Certain Defined Terms..............................................................................1
1.2. References........................................................................................26
1.3. Company Acting on Behalf of Itself and Subsidiary Borrowers.......................................26
1.4. Joint and Several Liability for Obligations of the Company and Domestic Subsidiary
Borrowers; Joint and Several Liability for Obligations of the Foreign Subsidiary
Borrowers; No Liability of Foreign Subsidiary Borrowers for Obligations of the Company
or the Domestic Subsidiary Borrowers...........................................................26
ARTICLE II: REVOLVING LOAN FACILITIES...........................................................................27
2.1. Revolving Loans...................................................................................27
2.2. Swing Line Loans..................................................................................28
2.3. Rate Options for all Advances; Maximum Interest Periods...........................................31
2.4. Optional Payments; Mandatory Prepayments..........................................................31
2.5. Voluntary Reduction of Commitments................................................................33
2.6. Method of Borrowing...............................................................................33
2.7. Method of Selecting Types, Currency and Interest Periods for New Advances.........................33
2.8. Minimum Amount of Each Advance....................................................................34
2.9. Method of Selecting Types, Currency and Interest Periods for Conversion and Continuation
of Outstanding Advances........................................................................34
2.10. Default Rate.....................................................................................35
2.11. Method of Payment................................................................................35
2.12. Evidence of Debt.................................................................................36
2.13. Telephonic Notices...............................................................................37
2.14. Promise to Pay; Interest Payment Dates; Fees; Interest and Fee Basis; Taxes......................37
2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan
Commitment Reductions..........................................................................42
2.16. Lending Installations............................................................................42
2.17. Non-Receipt of Funds by the Administrative Agent.................................................42
2.18. Termination Date.................................................................................43
2.19. Replacement of Certain Lenders...................................................................43
2.20. Judgment Currency................................................................................44
2.21. Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of
Reimbursement Obligations......................................................................44
2.22. Increase of Aggregate Revolving Loan Commitment..................................................45
2.23. Addition of Subsidiary Borrowers.................................................................46
ARTICLE III: THE LETTER OF CREDIT FACILITY......................................................................47
3.1. Obligation to Issue Letters of Credit.............................................................47
3.2. Transitional Letters of Credit....................................................................47
3.3. Types and Amounts.................................................................................47
3.4. Conditions........................................................................................47
3.5. Procedure for Issuance of Letters of Credit.......................................................48
3.6. Letter of Credit Participation....................................................................48
3.7. Reimbursement Obligation..........................................................................49
3.8. Letter of Credit Fees.............................................................................50
3.9. Issuing Bank Reporting Requirements...............................................................50
3.10. Indemnification; Exoneration.....................................................................50
3.11. Collateral Account...............................................................................51
3.12. Rights as a Lender...............................................................................52
ARTICLE IV: CHANGE IN CIRCUMSTANCES.............................................................................52
4.1. Yield Protection..................................................................................52
4.2. Changes in Capital Adequacy Regulations...........................................................54
4.3. Availability of Types of Advances.................................................................54
4.4. Funding Indemnification...........................................................................54
4.5. Lender Statements; Survival of Indemnity..........................................................55
ARTICLE V: CONDITIONS PRECEDENT.................................................................................55
5.1. Conditions to Closing, Initial Advances and Letters of Credit.....................................55
5.2. Each Advance and Letter of Credit.................................................................57
5.3. Initial Advance to Each New Subsidiary Borrower...................................................58
ARTICLE VI: REPRESENTATIONS AND WARRANTIES......................................................................59
6.1. Corporate Existence and Standing..................................................................59
6.2. Authorization, Validity and Enforceability........................................................59
6.3. No Conflict; Consent..............................................................................59
6.4. Financial Statements..............................................................................60
6.5. Material Adverse Change...........................................................................60
6.6. Taxes.............................................................................................60
6.7. Litigation and Contingent Obligations.............................................................60
6.8. Subsidiaries......................................................................................60
6.9. ERISA; Foreign Plans; Multiemployer Plans.........................................................61
6.10. Accuracy of Information..........................................................................61
6.11. Regulation U.....................................................................................61
6.12. Material Agreements..............................................................................61
6.13. Compliance With Laws.............................................................................62
6.14. Plan Assets; Prohibited Transactions.............................................................62
6.15. Environmental Matters............................................................................62
6.16. Investment Company Act...........................................................................62
6.17. Public Utility Holding Company Act...............................................................62
6.18. Ownership of Properties..........................................................................62
6.19. Insurance........................................................................................62
6.20. No Default or Unmatured Default..................................................................63
6.21. Solvency.........................................................................................63
6.22. Benefits.........................................................................................63
6.23. Additional Representations and Warranties of Foreign Subsidiary Borrowers........................63
ARTICLE VII: COVENANTS..........................................................................................64
7.1. Reporting.........................................................................................64
7.2. Affirmative Covenants.............................................................................65
7.3. Negative Covenants................................................................................69
7.4. Financial Covenants...............................................................................76
ARTICLE VIII: DEFAULTS..........................................................................................76
8.1. Defaults..........................................................................................76
ARTICLE IX: ACCELERATION; WAIVERS, AMENDMENTS AND REMEDIES......................................................78
9.1. Termination of Revolving Loan Commitments; Acceleration...........................................78
9.2. Preservation of Rights............................................................................79
9.3. Amendments........................................................................................80
ARTICLE X: GENERAL PROVISIONS...................................................................................81
10.1. Survival of Representations......................................................................81
10.2. Governmental Regulation..........................................................................81
10.3. Accounting.......................................................................................81
10.4. Headings.........................................................................................81
10.5. Entire Agreement.................................................................................81
10.6. Several Obligations; Benefits of this Agreement..................................................82
10.7. Expenses; Indemnification........................................................................82
10.8. Numbers of Documents.............................................................................83
10.9. Confidentiality..................................................................................83
10.10. Severability of Provisions......................................................................83
10.11. Nonliability of Lenders.........................................................................83
10.12. GOVERNING LAW...................................................................................84
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.........................................84
10.14. Subordination of Intercompany Indebtedness......................................................86
ARTICLE XI: THE ADMINISTRATIVE AGENT............................................................................86
11.1. Appointment; Nature of Relationship..............................................................86
11.2. Powers...........................................................................................87
11.3. General Immunity.................................................................................87
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.....................................87
11.5. Action on Instructions of Lenders................................................................87
11.6. Employment of Administrative Agent and Counsel...................................................87
11.7. Reliance on Documents; Counsel...................................................................88
11.8. The Administrative Agent's Reimbursement and Indemnification.....................................88
11.9. Rights as a Lender...............................................................................88
11.10. Lender Credit Decision..........................................................................88
11.11. Successor Administrative Agent..................................................................89
11.12. No Duties Imposed Upon Syndication Agents, Documentation Agents or Arrangers....................89
11.13. Notice of Default...............................................................................89
11.14. Delegation to Affiliates........................................................................89
11.15. Authority with Respect to Guarantees............................................................90
ARTICLE XII: SETOFF; RATABLE PAYMENTS...........................................................................90
12.1. Setoff...........................................................................................90
12.2. Ratable Payments.................................................................................90
12.3. Relations Among Lenders..........................................................................91
12.4. Disclosure.......................................................................................91
12.5. Nonreliance......................................................................................91
12.6. Representations and Covenants Among Lenders......................................................91
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................................91
13.1. Successors and Assigns; Designated Lenders.......................................................91
13.2. Participations...................................................................................93
13.3. Assignments......................................................................................94
13.4. Dissemination of Information.....................................................................96
13.5. Tax Certifications...............................................................................96
ARTICLE XIV: NOTICES............................................................................................96
14.1. Giving Notice....................................................................................96
14.2. Change of Address................................................................................97
14.3. USA PATRIOT ACT NOTIFICATION.....................................................................97
ARTICLE XV: COUNTERPARTS........................................................................................98
EXHIBITS AND SCHEDULES
Exhibits
EXHIBIT A -- Revolving Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
(Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice
(Section 2.2, Section 2.7 and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit
(Section 3.4)
EXHIBIT D -- Form of Assignment Agreement
(Definitions and Section 13.3)
EXHIBIT E-1 -- Form of Initial Loan Parties' U.S. Counsel's Opinion
(Sections 5.1 and 5.3)
EXHIBIT E-2 -- Form of Initial Subsidiary Borrower's Ireland Counsel's Opinion
(Sections 5.1 and 5.3)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT H -- Form of Subsidiary Guaranty
(Definitions)
EXHIBIT I -- Form of Revolving Loan Note
(If Requested) (Section 2.12(D))
EXHIBIT J -- Form of Assumption Letter
(Definitions)
EXHIBIT K -- Form of Designation Agreement
(Section 13.1(B))
EXHIBIT L -- Form of Commitment and Acceptance
(Section 2.22)
Schedules
Pricing Schedule
Schedule 1.1.1 -- Assets for Sale as of the Closing Date
Schedule 1.1.2 -- Permitted Existing Non-Guarantor Subsidiary Indebtedness
Schedule 3.2 -- Transitional Letters of Credit
Schedule 6.7 -- Litigation
Schedule 6.8 -- Subsidiaries
Schedule 7.3(E) -- Existing and Specified Investments
Schedule 7.3(F) -- Existing Liens
This
CREDIT AGREEMENT, dated as of July 6, 2004, is entered into by and among ArvinMeritor,
Inc., an Indiana corporation, as the Company, ArvinMeritor Finance Ireland, a private
unlimited liability company incorporated under the laws of Ireland, and the other
Subsidiary Borrowers from time to time parties hereto, the institutions from time to time
parties hereto as Lenders, whether by execution of this Agreement or an Assignment
Agreement pursuant to Section 13.3, Bank One, NA (Main Office Chicago), as
Administrative Agent for itself and the other Lenders, JPMorgan Chase Bank and Citicorp
North America, Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas and UBS
Securities LLC, as Documentation Agents. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
AND GENERALLY APPLICABLE PRINCIPLES
| |
1.1. |
Certain Defined Terms. The following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined. |
As
used in this Agreement:
“1990
Senior Note Indenture” means that certain Indenture, dated as of July
3, 1990, between the Company (as successor to Xxxxx Industries, Inc.) and BNY Midwest
Trust Company (as successor to Xxxxxx Trust and Savings Bank), as Trustee, as amended,
restated, supplemented or otherwise modified from time to time in accordance with the
terms of Section 7.3(K) hereof.
“1998
Senior Note Indenture” means that certain Indenture, dated as of April
1, 1998, between the Company (as successor to Meritor Automotive, Inc.) and BNY Midwest
Trust Company (as successor to The Chase Manhattan Bank), as Trustee, as amended,
restated, supplemented or otherwise modified from time to time in accordance with the
terms of Section 7.3(K) hereof.
“Accounting
Changes” is defined in Section 10.3 hereof.
“Acquisition”
means any transaction, or any series of related transactions, consummated on or after the
date of this Agreement, by which the Company or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of any firm, corporation,
partnership or limited liability company, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or
as the most recent transaction in a series of transactions) at least a majority (in number
of votes) of the securities of a corporation which have ordinary voting power for the
election of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of the
outstanding ownership interests of a partnership or limited liability company.
“Administrative
Agent” means Bank One in its capacity as contractual representative
for itself and the Lenders pursuant to Article XI hereof and any successor
Administrative Agent appointed pursuant to Article XI hereof.
“Advance”
means a borrowing hereunder consisting of the aggregate amount of the several Loans made
by the Lenders to a Borrower of the same Type and, in the case of Eurocurrency Rate
Advances, in the same Agreed Currency and for the same Interest Period.
“Affected
Lender” is defined in Section 2.19 hereof.
“Affiliate”
of any Person means any other Person directly or indirectly controlling, controlled by or
under common control with such Person. A Person shall be deemed to control another Person
if the controlling Person (i) is the “beneficial owner” (as defined in Rule
13d-3 under the Securities Exchange Act) of greater than or equal to ten percent (10%) or
more of the combined voting power of the controlled Person (giving effect to the relative
voting rights associated with the voting securities or other voting interests held by the
controlling Person) or (ii) possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person, whether
through ownership of Capital Stock, by contract or otherwise; provided, that under
no circumstance shall any Agent or any Lender be deemed to be an Affiliate of the Company
or vice versa.
“Agents”
shall mean, collectively, the Administrative Agent, the Syndication Agents and the
Documentation Agents.
“Aggregate
Revolving Loan Commitment” means the aggregate of the Revolving Loan
Commitments of all the Lenders, as the same may be increased or reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is Nine
Hundred Million and 00/100 Dollars ($900,000,000.00).
“Agreed
Currencies” means (i) Dollars, (ii) with respect to Swing Line Loans,
(x) so long as each such currency remains an Eligible Currency, euro, Sterling and
Canadian Dollars and (y) any other Eligible Currency which the Company requests the
Administrative Agent to include as an Agreed Currency hereunder with respect to Swing Line
Loans and which is acceptable to the Swing Line Lender and (iii) with respect to Revolving
Loans and Letters of Credit, (x) so long as such currency remains an Eligible Currency,
euro and (y) any other Eligible Currency which the Company requests the Administrative
Agent to include as an Agreed Currency hereunder with respect to Revolving Loans and
Letters of Credit and which is acceptable to all of the Lenders. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or other
exchange regulations are imposed in the country in which such currency is issued with the
result that different types of such currency are introduced, (y) such currency is, in the
determination of the Administrative Agent, no longer readily available or freely traded or
(z) in the determination of the Administrative Agent, an Equivalent Amount of such
currency is not readily calculable, the Administrative Agent shall promptly notify the
Lenders and the Company, and such currency shall no longer be an Agreed Currency until
such time as all of the Lenders agree to reinstate such currency as an Agreed Currency and
promptly, but in any event within five Business Days of receipt of such notice from the
Administrative Agent, the applicable Borrowers shall repay all Loans in such affected
currency or convert such Loans into Loans in Dollars or another Agreed Currency, subject
to the other terms set forth in Article II.
“Agreement”
means this Credit Agreement, as it may be amended, restated, supplemented or otherwise
modified and in effect from time to time.
“Agreement
Accounting Principles” means generally accepted accounting principles
as in effect in the United States of America from time to time, applied in a manner
consistent with that used in preparing the financial statements of the Company referred to
in Section 6.4; provided, however, that except as provided in
Section 10.3, with respect to the calculation of the financial covenants set forth
in Section 7.4 and any other financial tests set forth in this Agreement,
“Agreement Accounting Principles” means generally accepted accounting principles
as in effect in the United States of America as of the Closing Date, applied in a manner
consistent with that used in preparing the financial statements of the Company referred to
in Section 6.4 hereof.
“Alternate
Base Rate” means, for any day, a fluctuating rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of (a) the
Federal Funds Effective Rate for such day and (b) one-half of one percent (0.5%) per
annum.
“Applicable
Eurocurrency Margin” means, as at any date of determination, the rate
per annum then applicable to Eurocurrency Rate Loans determined in accordance with the
provisions of the Pricing Schedule hereto.
“Applicable
Facility Fee Percentage” means, as at any date of determination, the
rate per annum then applicable in the determination of the amount payable under Section
2.14(C)(i) hereof determined in accordance with the provisions of the Pricing Schedule
hereto.
“Applicable
Floating Rate Margin” means, as at any date of determination, the rate
per annum then applicable to Floating Rate Loans determined in accordance with the
provisions of the Pricing Schedule hereto.
“Applicable
L/C Fee Percentage” means, as at any date of determination, the rate
per annum then applicable in the determination of the amount payable under Section
3.8(A) hereof determined in accordance with the provisions of the Pricing Schedule
hereto.
“Applicable
Utilization Fee Percentage” means, as at any date of determination,
the rate per annum then applicable in the determination of the amount payable under
Section 2.14(C)(ii) hereof determined in accordance with the provisions of the
Pricing Schedule hereto.
“Approved
Fund” means any Fund that is administered or managed by (i) a Lender,
(ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
“Arranger”
means each of X.X. Xxxxxx Securities, Inc. and Citigroup Global Markets Inc. in its
respective capacity as a joint lead arranger and joint book runner for the loan
transaction evidenced by this Agreement.
“Asset
Sale” means, with respect to the Company or any of its Subsidiaries,
the sale, lease, conveyance, disposition or other transfer by such Person of any of its
assets (including by way of a sale-leaseback transaction, and including the sale or other
transfer of any of the Equity Interests of any Subsidiary of such Person) to any Person
other than (i) the sale or other transfer of any assets by the Company to any Wholly-Owned
Subsidiary or by any Wholly-Owned Subsidiary to the Company or any other Wholly-Owned
Subsidiary, (ii) the sale of Receivables and Related Security in connection with a
Permitted Receivables Financing or a Foreign Factoring Transaction, (iii) the sale of
inventory in the ordinary course of business, (iv) the sale of Roll Coater, Inc., an
Indiana corporation, and (v) the sale of any other asset identified on Schedule
1.1.1 as being for sale as of the Closing Date.
“Assignment
Agreement” means an assignment and assumption agreement entered into
in connection with an assignment pursuant to Section 13.3 hereof in substantially
the form of Exhibit D.
“Assumption
Letter” means a letter from a Wholly-Owned Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit J hereto pursuant to
which such Subsidiary agrees to become a Subsidiary Borrower and agrees to be bound by the
terms and conditions of this Agreement as if originally a party hereto.
“Authorized
Officer” means any of the Chairman and Chief Executive Officer, Senior
Vice President and Chief Financial Officer, Vice President and Treasurer and any Assistant
Treasurer of the Company, or any person designated by any such Person in writing to the
Administrative Agent from time to time, acting singly.
“Bank
One” means Bank One, NA (Main Office Chicago), in its individual
capacity, and its successors.
“Bank Book”
means the ArvinMeritor, Inc. $900,000,000 4-Year Revolving Credit Facility ConfidentialInformation
Memorandum dated May 2004.
“Benefit
Plan” means any Plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Company or any member of the Controlled Group may have
liability.
“Borrower”
means each of (i) the Company and (ii) any Subsidiary Borrower, and
“Borrowers” means, collectively, the Company and all
Subsidiary Borrowers.
“Borrowing
Date” means a date on which an Advance or Swing Line Loan is made
hereunder.
“Borrowing/Election
Notice” is defined in Section 2.7 hereof.
“Business
Day” means:
| |
(a) |
for the purpose of determining the Eurocurrency Base Rate, a day other than a
Saturday or Sunday on which banks are open for the transaction of domestic and
foreign exchange business in London, England; |
| |
(b) |
for the purpose of any borrowing or payment of Loans denominated in Dollars or
any other payment to be made in Dollars, a day other than a Saturday or Sunday
on which banks are open for the transaction of domestic and foreign exchange
business in Chicago, Illinois and New York, New York; |
| |
(c) |
for the purpose of any borrowing or payment of Loans denominated in (A) euro, a
day on which such clearing system as is determined by the Administrative Agent
to be suitable for clearing or settlement of euro is open for business and (B)
an Agreed Currency other than Dollars and euro, a day on which the applicable
Eurocurrency Payment Office related to such currency is open for the transaction
of domestic and foreign exchange business; and |
| |
(d) |
for any other purpose, a day other than a Saturday or Sunday on which banks are
generally open for the transaction of domestic and foreign exchange business in
Chicago, Illinois, and New York, New York. |
“Canadian
Dollars” means the lawful currency of Canada.
“Capital
Expenditures” means, for any period, the aggregate of all expenditures
by the Company and its consolidated Subsidiaries during that period that, in conformity
with Agreement Accounting Principles, are required to be included in or reflected by the
property, plant, Equipment or similar fixed asset accounts reflected in the consolidated
balance sheet of the Company and its Subsidiaries (which shall include, without
limitation, Capital Leases).
“Capital
Stock” means (i) in the case of a corporation, corporate stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock, (iii)
in the case of a limited liability company, membership interests, (iv) in the case of a
partnership, partnership interests (whether general or limited) and (v) any other interest
or participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person; provided,
however, that “Capital Stock” shall not include any debt securities
convertible into equity securities prior to such conversion.
“Capitalized
Lease” of a Person means any lease of property by such Person as
lessee which would be capitalized on a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles.
“Capitalized
Lease Obligations” of a Person means the amount of the obligations of
such Person under Capitalized Leases that would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
“Cash
Equivalent Investments” means (i) direct obligations of, or
obligations the principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof; (ii) investments in
commercial paper maturing within 270 days from the date of acquisition thereof and, at
such date of acquisition, rated A-2 or better by S&P or P-2 or better by Xxxxx’x;
(iii) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office
of any commercial bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided profits of not less
than $500,000,000; (iv) shares of money market, mutual or similar funds that (a) have
assets in excess of $100,000,000, (b) invest primarily in assets of the type described in
clauses (i)-(iii) above and (c) have an investment grade rating and (v) in
the case of any Foreign Subsidiary (in addition to the items permitted by the foregoing
clauses (i) through (iv)) any of the following: (a) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign nation in which
such Foreign Subsidiary is organized and is conducting business or issued by any agency of
such sovereign nation and backed by the full faith and credit of such sovereign nation, in
each case maturing within one year from the date of acquisition, so long as the
indebtedness of such sovereign nation is rated at least A by S&P or A2 by Xxxxx’x
or carries an equivalent rating from a comparable foreign rating agency if available, (b)
investments of the type and maturity described in clauses (ii), (iii) and
(iv) above of foreign obligors, which investments or obligors have ratings
described in such clauses or equivalent ratings from comparable foreign rating agencies if
available, (c) time deposits with any Lender or any Affiliate of any Lender and (d) time
deposits with any foreign bank not described in the foregoing clauses (b) or
(c) in an aggregate amount not to exceed $10,000,000 in the aggregate for all
Foreign Subsidiaries.
“Change”
is defined in Section 4.2 hereof.
“Change
in Control” means any event or series of events by which:
| |
(i) |
any “person” or “group” (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act) becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act),
directly or indirectly, of thirty percent (30%) or more of the voting power of
the then outstanding Capital Stock of the Company entitled to vote generally in
the election of the directors of the Company; |
| |
(ii) |
during any period of twelve (12) consecutive calendar months, the board of
directors of the Company shall cease to have as a majority of its members
individuals who either: (a) were directors of the Company on the first day of
such period, or (b) were elected or nominated for election to the board of
directors of the Company at the recommendation of or other approval by at least
a majority of the directors then still in office at the time of such election or
nomination who were directors of the Company on the first day of such period, or
whose election or nomination for election was so approved; or |
| |
(iii) |
the Company consolidates with or merges into another corporation or conveys,
transfers or leases all or substantially all of its property to any person, or
any corporation consolidates with or merges into the Company, in either event
pursuant to a transaction in which the outstanding Capital Stock of the Company
is reclassified or changed into or exchanged for cash, securities or other
Property. |
“Closing
Date” means July 6, 2004.
“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from
time to time.
“Collateral
Shortfall Amount” is defined in Section 9.1(A) hereof.
“Commission”
means the Securities and Exchange Commission of the United States of America and any
Person succeeding to the functions thereof.
“Commitment
and Acceptance” is defined in Section 2.22(C) hereof.
“Commitment Increase
Notice” is defined in Section 2.22(A) hereof.
“Company”
means ArvinMeritor Inc., an Indiana corporation, together with its successors and
permitted assigns, including a debtor-in-possession on behalf of the Company.
“Consolidated
Assets” means the total assets of the Company and its Subsidiaries on
a consolidated basis, determined in accordance with Agreement Accounting Principles.
“Consolidated
Operating Profit” means the operating profits of the Company and its
Subsidiaries on a consolidated basis, determined in accordance with Agreement Accounting
Principles.
“Consolidated
Sales” means the total sales of the Company and its Subsidiaries on a
consolidated basis, determined in accordance with Agreement Accounting Principles.
“Contingent
Obligation” of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes liable upon, the
obligation or liability of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss and shall include, without limitation, the
contingent liability of such first Person under any letter of credit for which such first
Person is in any way liable, but shall exclude any contingent liability with respect to
trade letters of credit used to finance inventory or equipment obtained in the ordinary
course of business.
“Controlled
Group” means all members of a controlled group of corporations or
other business entities and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any of its Subsidiaries, are treated as
a single employer under Section 414 of the Code.
“Credit
Extension Date” means (i) the Borrowing Date of any Advance, (ii) the
date of issuance, deemed issuance, extension or amendment of any Letter of Credit or (ii)
the date of conversion or continuance of any Advance in accordance with Section
2.9.
“Debt
Ratio” means, as of the last day of any fiscal quarter, the ratio of
(i) Total Indebtedness as of such date to (ii) EBITDA for the four consecutive fiscal
quarters then ended on such date.
“Default”
means an event described in Section 8.1 hereof.
“Designated
Financial Officer” means, the chief financial officer, treasurer,
assistant treasurer or controller of the Company.
“Designated
Lender” means, with respect to each Designating Lender, each Eligible
Designee designated by such Designating Lender pursuant to Section 13.1(B) hereof.
“Designating
Lender” means, with respect to each Designated Lender, the Lender that
designated such Designated Lender pursuant to Section 13.1(B) hereof.
“Designation
Agreement” is defined in Section 13.1(B) hereof.
“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in
part, on or prior to the date that is ninety-one (91) days after the Revolving Loan
Termination Date.
“Documentation
Agent” means each of ABN AMRO Bank N.V., BNP Paribas and UBS
Securities LLC in its respective capacity as a documentation agent for itself and the
Lenders.
“Dollar”
and “$” means the lawful currency of the United States of
America.
“Dollar
Amount” of any currency at any date shall mean (i) the amount of such
currency if such currency is Dollars or (ii) the Equivalent Amount of Dollars if such
currency is any currency other than Dollars.
“Domestic
Subsidiary” means a Subsidiary of the Company organized under the laws
of a jurisdiction located in the United States of America.
“Domestic
Subsidiary Borrower” means a Subsidiary Borrower that is a Domestic
Subsidiary.
“Double
Investment Grade Status” exists at any date if, on such date, (i) the
Company’s S&P Rating is BBB- or better and (ii) the
Company’s Xxxxx’x Rating is Baa3 or better.
“EBITDA”
means for any period, the sum of (i) the consolidated net income (or loss) of the Company
and its Subsidiaries for such period, plus (ii) to the extent deducted in
determining net income, income taxes, depreciation and amortization expense and Interest
Expense minus (plus) (iii) any extraordinary gains (losses) minus
(plus) (iv) any special, non-recurring, non-cash gains (charges) such as those
arising out of the ongoing restructuring or consolidation of the operations of the Company
and its Subsidiaries, all as determined in accordance with Agreement Accounting
Principles.
“Effective
Commitment Amount” is defined in Section 2.22(B) hereof.
“Eligible
Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to
banks in the London interbank market, (iv) which is convertible into Dollars in the
international interbank market and (v) as to which an Equivalent Amount may be readily
calculated.
“Eligible
Designee” means a special purpose corporation, partnership, trust,
limited partnership or limited liability company that is administered by the respective
Designating Lender or an Affiliate of such Designating Lender and (i) is organized under
the laws of the United States of America or any state thereof, (ii) is engaged primarily
in making, purchasing or otherwise investing in commercial loans in the ordinary course of
its business and (iii) issues (or the parent of which issues) commercial paper rated at
least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by
Xxxxx’x.
“Environmental
Laws” means, with respect to any Person, any and all federal, state,
local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the protection of
the environment, (ii) the effect of the environment on human health, (iii) emissions,
discharges or releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants, contaminants,
hazardous substances or wastes or the clean-up or other remediation thereof, in each case,
applicable to such Person or its Property.
“Environmental
Lien” means a Lien in favor of any Governmental Authority for (a) any
liability under Environmental Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, any noncompliance with any Environmental Law,
whether actual or threatened.
“Equivalent
Amount” of any currency at any date shall mean the equivalent in
Dollars of such currency, calculated on the basis of the arithmetic mean of the buy and
sell spot rates of exchange of the Administrative Agent or an Affiliate of the
Administrative Agent in the London interbank market (or other market where the
Administrative Agent’s foreign exchange operations in respect of such currency are
then being conducted) for such other currency at or about 11:00 a.m. (local time
applicable to the transaction in question) on the date on which such amount is to be
determined, rounded up to the nearest amount of such currency as determined by the
Administrative Agent from time to time; provided, however, that if at the
time of any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or an Affiliate of the Administrative Agent may use any reasonable
method it deems appropriate (after consultation with the Company) to determine such
amount, and such determination shall be conclusive absent manifest error.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time,
and any rule or regulation issued thereunder.
“euro”
means the lawful currency of the member states of the European Union which adopted the
Council Regulation E.C. No. 1103/97 dated 17 June 1997 passed by the Council of the
European Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of the Economic and Monetary Union.
“Eurocurrency
Base Rate” means, with respect to any Eurocurrency Rate Advance
denominated in any Agreed Currency for the relevant Interest Period, the applicable
British Bankers’ Association Interest Settlement Rate for deposits in such Agreed
Currency appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, and having a maturity equal to such
Interest Period; provided, that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurocurrency Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers’ Association
Interest Settlement Rate for deposits in such Agreed Currency as reported by any other
generally recognized financial information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, and having a maturity equal
to such Interest Period, and (ii) if no such British Bankers’ Association Interest
Settlement Rate is available to the Administrative Agent, the applicable Eurocurrency Base
Rate for the relevant Interest Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One or one of its Affiliate banks offers
to place deposits in such Agreed Currency with first-class banks in the London interbank
market at approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of Bank One’s relevant
Eurocurrency Rate Loan and having a maturity equal to such Interest Period, as adjusted
for Reserves.
“Eurocurrency
Payment Office” of the Administrative Agent shall mean, for each of
the Agreed Currencies, any agency, branch or Affiliate of the Administrative Agent,
specified as the “Eurocurrency Payment Office” for such Agreed Currency on
Exhibit A-1 hereto or such other agency, branch, Affiliate or correspondence bank
of the Administrative Agent, as it may from time to time specify to the Company and each
Lender as its Eurocurrency Payment Office.
“Eurocurrency
Rate” means, with respect to a Eurocurrency Rate Advance for the
relevant Interest Period, the Eurocurrency Base Rate applicable to such Interest Period
plus the Applicable Eurocurrency Margin then in effect.
“Eurocurrency
Rate Advance” means an Advance which bears interest at the
Eurocurrency Rate.
“Eurocurrency
Rate Loan” means a Loan, or portion thereof, which bears interest at
the Eurocurrency Rate.
“Federal
Funds Effective Rate” means, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such day, as
published for such day (or, if such day is not a Business Day, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three (3) Federal funds brokers of recognized standing selected
by the Administrative Agent in its sole discretion.
“Fixed
Charge Coverage Ratio” means, as of the last day of any fiscal
quarter, the ratio of (i) EBITDA for the four consecutive fiscal quarters then ended on
such date minus Capital Expenditures for such four fiscal-quarter period to (ii) Interest
Expense for such four fiscal-quarter period.
“Floating
Rate” means, for any day for any Advance, a rate per annum equal to
the Alternate Base Rate for such day, changing when and as the Alternate Base Rate changes
plus the Applicable Floating Rate Margin then in effect.
“Floating
Rate Advance” means an Advance which bears interest at the Floating
Rate.
“Floating
Rate Loan” means a Loan, or portion thereof, which bears interest at
the Floating Rate.
“Foreign
Currency Sublimit” means $150,000,000.
“Foreign
Factoring Transaction” means any factoring transaction entered into by
any Foreign Subsidiary with respect to Receivables originated by such Foreign Subsidiary
in the ordinary course of business, which factoring transaction gives rise to Receivables
Facility Attributed Indebtedness that is non-recourse to the Company and its Subsidiaries
other than limited recourse customary for factoring transactions of the same kind.
“Foreign
Plan” means an employee pension benefit plan (as defined in Section
3(2) of ERISA) which is (i) maintained or contributed to for the benefit of employees of
the Company, any of its Subsidiaries or any member of the Controlled Group, (ii) is not
covered by ERISA pursuant to Section 4(b)(4) thereof and (iii) under applicable local law,
is required to be funded through a trust or other funding vehicle.
“Foreign
Subsidiary” means a Subsidiary of the Company organized under the laws
of a jurisdiction located outside the United States of America.
“Foreign
Subsidiary Borrower” means a Subsidiary Borrower that is a Foreign
Subsidiary.
“Fund”
means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
“Governmental
Acts” is defined in Section 3.10(A) hereof.
“Governmental Authority”
means any nation or government, any federal, state, local or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative authority or functions of or pertaining to government, including any
authority or other quasi-governmental entity established to perform any of such functions.
“Guaranteed
Hedging Agreement” means any agreement permitted under Section
7.3(M) hereof entered into by the Company and any Lender or any Affiliate of any
Lender.
“Guarantees”
means, collectively, the Subsidiary Guaranty and any other guaranty executed by any
Subsidiary Guarantor in favor of the Administrative Agent, on behalf of itself and
Lenders, in respect of the Obligations, and “Guaranty”
means each such agreement, individually.
“Hedging
Arrangements” means any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the fluctuations of interest
rates, commodity prices, exchange rates or forward rates applicable to such party’s
assets, liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants or any similar derivative
transactions.
“Hedging
Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any Hedging Arrangements and (ii) any and all cancellations,
buybacks, reversals, terminations or assignments of any Hedging Arrangements.
“Holders
of Obligations” means (i) the holders of the Obligations from time to
time, including, without limitation, the Administrative Agent, each Arranger, the Lenders,
the Issuing Bank, the Swing Line Bank, each of their respective Affiliates and any
Indemnitee and including each Lender (or Affiliate thereof) in respect of all Hedging
Obligations of the Company and its Subsidiaries owing to such Lender (or Affiliate) as
exchange party or counterparty under any Guaranteed Hedging Agreements, and (ii) each such
holder’s respective successors, transferees and assigns.
“Indebtedness”
of a Person means, without duplication, such Person’s (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of such Person’s business
payable on terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations with respect to letters of credit,
bankers acceptances, surety bonds and similar instruments, (vi) obligations of such Person
to purchase securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vii) Capitalized Lease
Obligations, (viii) Contingent Obligations with respect to the Indebtedness of other
Persons (it being understood and agreed that, in calculating the amount of Indebtedness
hereunder, the amount of any such Contingent Obligations shall only be included to the
extent such Contingent Obligations do not cover obligations representing other
Indebtedness already included in such calculation) to the extent (and only to the extent)
that the other Indebtedness to which such Contingent Obligation relates is outstanding and
then only as to principal or like amounts actually borrowed, due, payable or drawn, as the
case may be, (ix) Receivables Facility Attributed Indebtedness, (x) Off-Balance Sheet
Liabilities, (xi) Disqualified Stock, (xii) with respect to the Indebtedness of the
Company, the Preferred Capital Securities, (xiii) Synthetic Lease Obligations and (xiv)
any other obligation for borrowed money or other financial accommodation (other than any
Hedging Obligation) which in accordance with GAAP would be shown as a liability on the
consolidated balance sheet of such Person.
“Indemnified
Matters” is defined in Section 10.7(B) hereof.
“Indemnitees”
is defined in Section 10.7(B) hereof.
“Initial
Loan Parties” means the Company, the Initial Subsidiary Borrower and
each Subsidiary Guarantor as of the Closing Date.
“Initial
Subsidiary Borrower” means ArvinMeritor Finance Ireland, a private
unlimited liability company incorporated under the laws of Ireland, together with its
permitted successors and assigns, including a debtor-in-possession (or entity of analogous
status under applicable foreign law) on behalf of the Initial Subsidiary Borrower.
“Intercompany
Indebtedness” means, with respect to any Borrower or Subsidiary
Guarantor, any and all claims of such Borrower or Subsidiary Guarantor against any other
Borrower or Subsidiary Guarantor or any other endorser, obligor or any other guarantor of
all or any part of the Obligations, or against any of its properties, including, without
limitation, claims arising from liens or security interests upon property with respect to
any such claim owing to such Borrower or Subsidiary Guarantor.
“Interest
Expense” means, with respect to any period, the aggregate of all
interest expense reported by the Company and its Subsidiaries in accordance with Agreement
Accounting Principles during such period, net of any interest income received by the
Company and its Subsidiaries during such period from Investments, but excluding, to the
extent constituting interest expense, Receivables Facility Financing Costs for such
period. As used in this definition, the term “interest” shall include, without
limitation, all interest, fees and costs payable with respect to the obligations under
this Agreement (other than fees and costs which may be capitalized as transaction costs in
accordance with Agreement Accounting Principles) and the interest portion of Capitalized
Lease payments during such period, all as determined in accordance with Agreement
Accounting Principles.
“Interest
Period” means, with respect to any Eurocurrency Rate Advance:
| |
(a) |
initially, the period commencing on the Borrowing Date with respect to such
Advance or the date of the conversion of such Advance, as the case may be,
ending seven or fourteen days or one, two, three, or six months thereafter or
such alternate period agreed to by the Lenders, as selected by the Company (on
behalf of itself or any Subsidiary Borrower) in its Borrowing/Election Notice
given with respect thereto; and |
| |
(b) |
thereafter, each period commencing on the last day of the preceding Interest
Period applicable to such Eurocurrency Rate Advance and ending seven or fourteen
days or one, two, three or six months thereafter or such alternate period agreed
to by the Lenders, as selected by the Company (on behalf of itself or any
Subsidiary Borrower) in its Borrowing/Election Notice given with respect thereto
in accordance with Section 2.9; |
provided, that all of the
foregoing provisions relating to Interest Periods are subject to the following:
| |
(i) |
if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of any Interest Period that is one, two, three or six months
in length, the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day; and |
| |
(ii) |
any Interest Period applicable to a Eurocurrency Rate Advance that would
otherwise extend beyond the Termination Date shall end on the Termination Date. |
“Investment”
of a Person means any loan, advance (other than commission, travel and similar advances to
officers and employees made in the ordinary course of business), extension of credit
(other than accounts receivable arising in the ordinary course of business on terms
customary in the trade and loans to employees in the ordinary course of business) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; and any deposit
accounts and certificate of deposits owned by such Person.
“IRS”
means the Internal Revenue Service and any Person succeeding to the functions thereof.
“Issuing
Bank” means (i) Bank One in its separate capacity as an issuer of
Letters of Credit pursuant to Section 3.1 or 3.2 hereunder with respect to
each Letter of Credit issued or deemed issued by Bank One upon the Borrower’s request
and (ii) any Lender (other than Bank One) reasonably acceptable to the Administrative
Agent, in such Lender’s separate capacity as an issuer of Letters of Credit pursuant
to Section 3.1 with respect to any and all Letters of Credit issued by such Lender
in its sole discretion upon the Borrower’s request; provided, that, unless the
Administrative Agent shall otherwise consent, there shall not at any time be more than
three (3) Lenders constituting Issuing Banks hereunder. All references contained in this
Agreement and the other Loan Documents to the “Issuing Bank” shall be deemed to
apply equally to each of the institutions referred to in clauses (i) and
(ii) of this definition in their respective capacities as issuers of any and all
Letters of Credit issued by each such institution.
“Joint
Venture” means an association of economically independent business
entities (the “Venturers”) for a common commercial purpose
of defined scope and duration, by contract or through equity interests in a business
entity, and by means of which the Venturers pool resources and share risks, rewards and
control.
“L/C
Collateral Account” is defined in Section 3.11(A) hereof.
“L/C Documents”
is defined in Section 3.4(A) hereof.
“L/C
Draft” means a draft drawn on the Issuing Bank pursuant to a Letter of
Credit.
“L/C
Interest” shall have the meaning ascribed to such term in Section
3.6 hereof.
“L/C
Obligations” means, without duplication, an amount equal to the sum of
(i) the aggregate of the Dollar Amount then available for drawing under each of the
Letters of Credit and (ii) the aggregate outstanding Dollar Amount of all Reimbursement
Obligations at such time.
“Lenders”
means the lending institutions listed on the signature pages of this Agreement or parties
to Assignment Agreements delivered pursuant to Section 13.3 hereof, including the
Issuing Bank, the Swing Line Bank and each of their respective successors and assigns.
“Lending
Installation” means, with respect to a Lender or the Administrative
Agent, any office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent.
“Letter
of Credit” means the commercial and standby letters of credit (i) to
be issued by the Issuing Bank pursuant to Section 3.1 hereof or (ii) deemed issued
by the Issuing Bank as a Transitional Letter of Credit pursuant to Section 3.2
hereof.
“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation,
the interest of a vendor or lessor under any conditional sale, Capitalized Lease,
Synthetic Lease or other title retention agreement).
“Loan(s)”
means, with respect to a Lender, such Lender’s portion of any Advance made pursuant
to Section 2.1 hereof, as applicable, and in the case of the Swing Line Bank, any
Swing Line Loan made pursuant to Section 2.2 hereof, and collectively, all
Revolving Loans (whether made or continued as or converted to Floating Rate Loans or
Eurocurrency Rate Loans) and Swing Line Loans.
“Loan
Account” is defined in Section 2.12(A) hereof.
“Loan Documents”
means this Agreement, any promissory notes executed pursuant to Section 2.12(D),
the Guarantees, any Assumption Letter, any Commitment and Acceptance, any Assignment
Agreement and all other documents, instruments, notes and agreements executed in
connection therewith or pursuant thereto, as the same may be amended, restated or
otherwise modified and in effect from time to time.
“Margin
Stock” shall have the meaning ascribed to such term in Regulation U.
“Material
Adverse Effect” means a material adverse effect on (i) business,
condition (financial or otherwise), operations, performance or Properties of the Company
and its Subsidiaries taken as a whole, (ii) the ability of the Borrowers to pay the
Obligations under the Loan Documents, or (iii) the validity or enforceability of any of
the Loan Documents or the rights or remedies of the Agents or the Lenders thereunder.
“Material
Domestic Subsidiary” means (a) each Domestic Subsidiary Borrower and
(b) each other Domestic Subsidiary of the Company (i) the total assets of which
(determined on a consolidated basis for such Subsidiary and its Subsidiaries) exceed five
percent (5.0%) of the Company’s Consolidated Assets, (ii) the total sales of which
for the most recently ended fiscal quarter (determined on a consolidated basis for such
Subsidiary and its Subsidiaries) exceed five percent (5.0%) of the Company’s
Consolidated Sales for the most recently ended fiscal quarter or (iii) the total operating
profits of which for the most recently ended fiscal quarter (determined on a consolidated
basis for such Subsidiary and its Subsidiaries) exceed five percent (5.0%) of the
Company’s Consolidated Operating Profit for the most recently ended fiscal quarter;
provided, that neither Maremont Corporation, a Delaware corporation, nor any SPV
shall at any time constitute a Material Domestic Subsidiary.
“Material
Indebtedness” means Indebtedness in an outstanding principal Dollar
Amount of $35,000,000 or more in the aggregate.
“Material
Indebtedness Agreement” means any agreement under which any Material
Indebtedness was created or is governed or which provides for the incurrence of
Indebtedness in an amount which would constitute Material Indebtedness (whether or not an
amount of Indebtedness constituting Material Indebtedness is outstanding thereunder).
“Moody’s”
means Xxxxx’x Investors Service, Inc., together with its successors and assigns.
“Xxxxx’x
Rating” means, at any time, the rating issued by Moody’s and then
in effect with respect to the Company’s senior unsecured long-term debt securities
without third-party credit enhancement.
“Multiemployer
Plan” means a “multiemployer plan” as defined in Section
4001(a)(3) of ERISA which is contributed to by either the Company or any member of the
Controlled Group.
“Net
Aggregate Credit Exposure” means, as of any date of determination, (i)
the Dollar Amount of the Revolving Credit Obligations as of such date minus (ii) the
Dollar Amount of funds on deposit in the L/C Collateral Account on such date.
“Non-Guarantor
Subsidiary” means each Subsidiary of the Company that is not a
Subsidiary Guarantor.
“Obligations”
means all Loans, L/C Obligations, advances, debts, liabilities, obligations, covenants and
duties owing by the Company or any of its Subsidiaries (including, without limitation, any
Subsidiary Borrower) to the Administrative Agent, any Lender, the Swing Line Bank, any
Arranger, any Affiliate of the Administrative Agent or any Lender, the Issuing Bank, or
any Indemnitee, of any kind or nature, present or future, arising under this Agreement,
the L/C Documents, the Guarantees or any other Loan Document, whether or not evidenced by
any note, guaranty or other instrument, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification, or in any
other manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising and
however acquired. The term includes, without limitation, all Hedging Obligations owing
under Guaranteed Hedging Agreements to any Lender or any Affiliate of any Lender, all
interest, charges, expenses, fees, attorneys’ fees and disbursements,
paralegals’ fees (in each case whether or not allowed or allowable), and any other
sum chargeable to the Company or any of its Subsidiaries under this Agreement or any other
Loan Document.
“Off-Balance
Sheet Liabilities” of a Person means, without duplication, (i) any
Receivables Facility Attributed Indebtedness and repurchase obligation or liability of
such Person or any of its Subsidiaries with respect to Receivables or notes receivable
sold by such Person or any of its Subsidiaries to the extent such Receivables Facility
Attributed Indebtedness, obligation or liability does not appear on the consolidated
balance sheet of such Person and its Subsidiaries (calculated to include the unrecovered
investment of purchasers or transferees of Receivables or notes receivable or any other
obligation of the Company or such transferor to purchasers/transferees of interests in
Receivables or notes receivables or the agent for such purchasers/transferees), (ii) any
liability under any sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person, (iii) any Synthetic Lease Obligations or (iv)
any obligations arising with respect to any other transaction (other than any Operating
Lease that does not constitute a Synthetic Lease) which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
“Operating
Lease” of a Person means any lease of property by such Person as
lessee that qualifies as an operating lease for financial reporting purposes under
Agreement Accounting Principles.
“Originators”
means the Company and/or any of its Subsidiaries (other than any SPV) in their respective
capacities as sellers or transferors of any Receivables and Related Security in connection
with a Permitted Receivables Financing.
“Other
Taxes” is defined in Section 2.14(E)(ii) hereof.
“Participants”
is defined in Section 13.2(A) hereof.
“Payment
Date” means the last Business Day of each March, June, September and
December and the Termination Date, commencing September 30, 2004.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Permitted
Acquisition” is defined in Section 7.3(G) hereof.
“Permitted Existing
Non-Guarantor Subsidiary Indebtedness” means the Indebtedness of the
Non-Guarantor Subsidiaries as of the Closing Date identified as such on Schedule
1.1.2 to this Agreement.
“Permitted
Receivables Financing” means any transaction or series of transactions
(other than any Foreign Factoring Transaction) that may be entered into by the Company or
any Subsidiary pursuant to which the Company and/or any of its Subsidiaries may sell,
convey or otherwise transfer, directly or indirectly, to a newly-formed SPV, or any other
Person, any Receivables and Related Security for the purpose of obtaining financing;
provided, that (i) the Receivables Facility Attributed Indebtedness incurred in
such transaction or series of transactions does not at any time exceed $350,000,000 in the
aggregate with all other Receivables Facility Attributed Indebtedness of the Company and
its Subsidiaries (other than any Receivables Facility Attributed Indebtedness arising in
connection with a Foreign Factoring Transaction) and (ii) such Receivables Facility
Attributed Indebtedness is non-recourse to the Company and its Subsidiaries (other than an
SPV) other than limited recourse customary for receivables financings of the same kind.
“Permitted
Refinancing Indebtedness” means any replacement, renewal, refinancing
or extension of any Permitted Existing Non-Guarantor Subsidiary Indebtedness permitted by
this Agreement that (i) does not exceed the aggregate principal amount (plus accrued
interest and any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted Average
Life to Maturity at the time of such replacement, renewal, refinancing or extension that
is less than the Weighted Average Life to Maturity of the Indebtedness being replaced,
renewed, refinanced or extended, (iii) does not rank at the time of such replacement,
renewal, refinancing or extension senior to the Indebtedness being replaced, renewed,
refinanced or extended, and (iv) does not contain terms (including, without limitation,
terms relating to security, amortization, interest rate, premiums, fees, covenants,
subordination, event of default and remedies) that are materially less favorable to the
relevant Non-Guarantor Subsidiary than those applicable to the Indebtedness being
replaced, renewed, refinanced or extended.
“Permitted
Related Party Transactions” means (a) Permitted Receivables
Financings, (b) transactions between one or more Wholly-Owned Subsidiaries of the Company;
(c) transactions between the Company and one or more Wholly-Owned Subsidiaries of the
Company; and (d) transactions between (i) any non-Wholly-Owned Subsidiary of the Company,
any Affiliate of the Company (other than Wholly-Owned Subsidiaries) or any Joint Venture
in which the Company or any of its Subsidiaries is a Venturer, on the one hand and (ii)
the Company or any Wholly-Owned Subsidiary of the Company, on the other hand, where the
net benefit derived from such transaction is derived by the Company or such Wholly-Owned
Subsidiary as the transferee in such transaction.
“Permitted
Strategic Transactions” means one or more transactions: (a) entered
into between (i) the Company or one of its Wholly-Owned Subsidiaries, on the one hand and
(ii) any non-Wholly-Owned Subsidiary, Affiliate (other than Wholly-Owned Subsidiaries) or
Joint Venture, on the other hand, (b) where the principal factor for the Company or the
Wholly-Owned Subsidiary entering into such a transaction is to provide for a more
tax-efficient structure or to accomplish strategic objectives and (c) where such
transaction or transactions are not materially adverse to the interests of the Lenders in
their capacities as Lenders under this Agreement.
“Person”
means any individual, corporation, firm, enterprise, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, limited liability company
or other entity of any kind, or any government or political subdivision or any agency,
department or instrumentality thereof.
“Plan”
means an employee benefit plan defined in Section 3(3) of ERISA (other than a Foreign
Plan) in respect of which the Company or any member of the Controlled Group is an
“employer” as defined in Section 3(5) of ERISA.
“Preferred
Capital Securities” means the 9½% Mandatory Redeemable
Preferred Capital Securities due 2027 issued by a wholly-owned finance subsidiary trust of
the Company, as the terms of which may be amended, restated, supplemented or otherwise
modified in accordance with the terms of Section 7.3(K) hereof.
“Prime
Rate” means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily the lowest
rate charged to any customer), changing when and as said prime rate changes.
“Prior
Credit Agreements” means, collectively, (i) that certain Amended and
Restated 5-Year Revolving Credit Agreement, dated as of June 27, 2001, among the Company,
certain Subsidiaries of the Company party thereto from time to time, the financial
institutions party thereto, Bank One, as administrative agent, JPMorgan Chase Bank, as
syndication agent, and Citicorp USA, Inc. and Bank of America, N.A., as co-documentation
agents, and (ii) that certain Three-Year Revolving Credit Agreement, dated as of June 26,
2002, among the Company, the financial institutions party thereto, Bank One, as
administrative agent, JPMorgan Chase Bank, as syndication agent, and Deutsche Bank
Securities Inc., Citicorp USA, Inc. and UBS Warburg LLC, as co-documentation agents.
“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.
“Proposed
Increase Lender” is defined in Section 2.22(B) hereof.
“Proposed New
Lender” is defined in Section 2.22(B) hereof.
“Pro
Rata Share” means, with respect to any Lender, the percentage obtained
by dividing (x) such Lender’s Revolving Loan Commitment at such time (in each case,
as adjusted from time to time in accordance with the provisions of this Agreement) by (y)
the Aggregate Revolving Loan Commitment at such time; provided, however, if
all of the Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then “Pro Rata Share” means the percentage obtained by dividing (x)
the sum of (A) the Dollar Amount of such Lender’s Revolving Loans plus (B) the
Dollar Amount of such Lender’s share of the obligations to purchase participations in
Swing Line Loans and Letters of Credit by (y) the Dollar Amount of the Revolving Credit
Obligations.
“Purchasers”
is defined in Section 13.3(A) hereof.
“Rate
Option” means the Eurocurrency Rate or the Floating Rate, as
applicable.
“Receivable(s)”
means and includes all of the Company’s and its Subsidiaries’ presently existing
and hereafter arising or acquired accounts, accounts receivable, and all present and
future rights of the Company and its Subsidiaries to payment for goods sold or leased or
for services rendered, whether or not they have been earned by performance, and all rights
in any merchandise or goods which any of the same may represent, and all rights, title,
security and guaranties with respect to each of the foregoing, including, without
limitation, any right of stoppage in transit.
“Receivables
and Related Security” means the Receivables and the related security
and collections with respect thereto which are sold or transferred by any Originator or
SPV in connection with any Permitted Receivables Financing.
“Receivables
Facility Attributed Indebtedness” means the amount of obligations
outstanding under receivables purchase facilities or factoring transactions on any date of
determination that would be characterized as principal if such facilities or transactions
were structured as secured lending transactions rather than as purchases, whether such
obligations constitute on-balance sheet Indebtedness or an Off-Balance Sheet Liability.
“Receivables
Facility Financing Costs” means (i) the interest expense payable by
the Company and its Subsidiaries in accordance with Agreement Accounting Principles on any
Receivables Facility Attributed Indebtedness constituting on-balance sheet Indebtedness or
(ii) the discount or implied interest component of Receivables Facility Attributed
Indebtedness retained by purchasers of Receivables and Related Security pursuant to a
Permitted Receivables Financing.
“Register”
is defined in Section 13.3(D) hereof.
“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by banks,
non-banks and non-broker lenders for the purpose of purchasing or carrying Margin Stock
applicable to member banks of the Federal Reserve System.
“Regulation
X” means Regulation X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor or other regulation or official
interpretation of said Board of Governors relating to the extension of credit by foreign
lenders for the purpose of purchasing or carrying margin stock (as defined therein).
“Reimbursement
Obligation” is defined in Section 3.7 hereof.
“Replacement
Lender” is defined in Section 2.19 hereof.
“Reportable
Event” means a reportable event as defined in Section 4043 of ERISA
and the regulations issued under such section, with respect to a Plan, excluding, however,
such events as to which the PBGC by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of such event.
“Request
for Letter of Credit” is defined in Section 3.4(A) hereof.
“Required
Lenders” means Lenders whose Pro Rata Shares, in the aggregate, are
equal to or greater than fifty-one percent (51%); provided, however, that if
(x) the Revolving Loan Commitments have not been terminated pursuant to the terms of this
Agreement and (y) any Lender shall have failed to fund its Pro Rata Share of any Revolving
Loan such Lender is obligated to fund under the terms of this Agreement and such failure
has not been cured, then, for so long as such failure continues, “Required
Lenders” means Lenders (excluding all Lenders whose failure to fund their respective
Pro Rata Shares of a Revolving Loan has not been so cured) whose Pro Rata Shares represent
at least fifty-one percent (51%) of the aggregate Pro Rata Shares of such Lenders.
“Reserves”
shall mean the maximum reserve requirement, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) with respect to “Eurocurrency
liabilities” or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Eurocurrency Rate Loans is determined
or category of extensions of credit or other assets which includes loans by a non-United
States office of any Lender to United States residents.
“Restricted
Payment” means (i) any dividend or other distribution, direct or
indirect, on account of any equity interests of the Company now or hereafter
outstanding, except a dividend payable solely in the Company’s Capital Stock (other
than Disqualified Stock) or in options, warrants or other rights to purchase such
Capital Stock, (ii) any redemption, retirement, purchase or other acquisition for value,
direct or indirect, of any equity interests of the Company or any of its Subsidiaries now
or hereafter outstanding, other than in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of other equity
interests of the Company (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or indirect, of
any subordinated Indebtedness (including, without limitation, the Preferred Capital
Securities) or any Disqualified Stock and (iv) any payment of a claim for the rescission
of the purchase or sale of, or for material damages arising from the purchase or sale of,
any Indebtedness (other than the Obligations) or any equity interests of the Company, or
any of its Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
“Revolving
Credit Availability” means, at any particular time, the amount by
which (i) the Aggregate Revolving Loan Commitment at such time exceeds (ii) the Dollar
Amount of the Revolving Credit Obligations outstanding at such time.
“Revolving
Credit Obligations” means, at any particular time, the sum of (i) the
outstanding principal Dollar Amount of the Revolving Loans at such time, plus (ii)
the outstanding principal Dollar Amount of the Swing Line Loans at such time, plus
(iii) the Dollar Amount of outstanding L/C Obligations at such time.
“Revolving
Loan” is defined in Section 2.1(A) hereof.
“Revolving Loan
Commitment” means, for each Lender, the obligation of such Lender to
make Revolving Loans and to purchase participations in Letters of Credit and to
participate in Swing Line Loans in an aggregate amount not exceeding the amount set forth
on Exhibit A to this Agreement opposite its name thereon under the heading
“Revolving Loan Commitment” or the signature page of the Assignment Agreement by
which it became a Lender, as such amount may be increased or decreased from time to time
pursuant to the terms of this Agreement or to give effect to any applicable Assignment
Agreement.
“Revolving
Loan Termination Date” means July 6, 2008.
“Risk-Based
Capital Guidelines” is defined in Section 4.2.
“S&P”
means Standard and Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies,
together with its successors and assigns.
“S&P
Rating” means, at any time, the rating issued by S&P and then in
effect with respect to the Company’s senior unsecured long-term debt securities
without third-party credit enhancement.
“Securities
Act” means the Securities Act of 1933, as amended from time to time.
“Securities Exchange
Act” means the Securities Exchange Act of 1934, as amended from time
to time.
“Senior
Note Indenture” means each of (i) the 1990 Senior Note Indenture and
(ii) the 1998 Senior Note Indenture, and “Senior Note
Indentures” means, collectively, the 1990 Senior Note Indenture and
the 1998 Senior Note Indenture.
“Significant
Subsidiary” means any Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 of the Security Exchange
Commission’s Regulation S-X, as amended and in effect from time to time.
“Single
Investment Grade Status” exists at any date if, on such date, (i) the
Company’s S&P Rating is BBB- or better or (ii) the
Company’s Xxxxx’x Rating is Baa3 or better.
“Solvent”
means, with respect to any Person (individually or together with its Subsidiaries (taken
as a whole)) on a particular date, that on such date (i) the fair value of the property of
such Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair salable value of the assets of such
Person (determined on a going concern basis) is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature, and (iv) such Person is not engaged in a business or transaction, and
is not about to engage in a business or transaction, for which such Person’s property
would constitute an unreasonably small capital. The amount of contingent liabilities (such
as litigation, guaranties and pension plan liabilities) at any time shall be computed as
the amount that, in light of all the facts and circumstances existing at the time,
represents the amount that can be reasonably be expected to become an actual or matured
liability.
“Special
Foreign Subsidiary Borrower” means, at any time, any Foreign
Subsidiary Borrower (a) that (i) is classified other than as a corporation for United
States federal income tax purposes and (ii) whose assumption of joint and several
liability hereunder for the Obligations of the Company or any Domestic Subsidiary
Borrowers would not be unlawful under applicable law or have material adverse tax
consequences under applicable foreign law, or (b) whose assumption of joint and several
liability hereunder for the Obligations of the Company or any Domestic Subsidiary
Borrowers would not (i) give rise to adverse United States federal income tax consequences
as a result of Section 956(d) of the Code (or any successor provision) or (ii) be unlawful
under applicable law or have material adverse tax consequences under applicable foreign
law; provided, however, that in the event that a Foreign Subsidiary Borrower
satisfies the requirements of clause (a)(i) or (b)(i) and such Foreign
Subsidiary Borrower’s assumption of joint and several liability for the Obligations
would not be considered unlawful under applicable law or the tax consequences would not be
materially adverse under applicable foreign law if the obligations of such Foreign
Subsidiary Borrower were limited to an absolute Dollar Amount (pursuant to a formula or
otherwise), such Foreign Subsidiary Borrower shall be treated as a Special Foreign
Subsidiary Borrower, subject to any such limitations.
“SPV”
means any special purpose entity established for the purpose of purchasing receivables in
connection with a receivables securitization transaction permitted under the terms of this
Agreement.
“Sterling”
means the lawful currency of the United Kingdom.
“Subsidiary”
of a Person means (i) any corporation more than fifty percent (50%) of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability
company, association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which shall at
the time be so owned or controlled. Unless otherwise expressly provided, all references
herein to a “Subsidiary” means a Subsidiary of the Company and shall include,
without limitation, each Subsidiary Borrower and each Subsidiary Guarantor.
“Subsidiary
Borrower” means the Initial Subsidiary Borrower or any other
Wholly-Owned Subsidiary of the Company, whether now existing or hereafter formed, that
becomes a party hereto pursuant to an Assumption Letter with the consent of the
Administrative Agent and subject to the satisfaction of such other conditions set forth in
Sections 2.23 and 5.3 of this Agreement, together with its respective
successors and assigns, including a debtor-in-possession (or entity of analogous status
under applicable foreign law) on behalf of any such Subsidiary.
“Subsidiary
Guarantors” means (i) all of the Company’s Material Domestic
Subsidiaries as of the Closing Date, (ii) all new Material Domestic Subsidiaries which
become Subsidiary Guarantors in accordance with Section 7.2(K)(i) hereof and (iii)
all additional Subsidiaries of the Company which become Subsidiary Guarantors in
accordance with Section 7.2(K)(ii) hereof, in each case, together with their
respective successors and assigns (including a debtor-in-possession (or entity of
analogous status under applicable foreign law) on behalf of any such Subsidiary), unless
and until such Subsidiary has been released from its respective Guaranty in accordance
with the terms of this Agreement.
“Subsidiary
Guaranty” means that certain Guaranty, dated as of the Closing Date,
in form and substance substantially similar to Exhibit H hereto, executed by the
Subsidiary Guarantors in favor of the Administrative Agent, for the ratable benefit of the
itself and the other Holders of Obligations, unconditionally guaranteeing all of the
indebtedness, obligations and liabilities of the Borrowers arising under or in connection
with the Loan Documents, as the same may be amended, restated, supplemented or otherwise
modified from time to time (including to add additional Subsidiary Guarantors).
“SunTrust
Synthetic Lease” shall mean the Synthetic Lease governed by and
subject to the SunTrust Synthetic Lease Documents.
“SunTrust
Synthetic Lease Creditors” has the meaning given to that term in the
definition of SunTrust Synthetic Lease Documents below.
“SunTrust
Synthetic Lease Documents” shall mean (i) that certain Master
Agreement, dated as of December 17, 2001, by and among the Company, certain Subsidiaries
of the Company that are or may hereafter become parties thereto as lessees, Atlantic
Financial Group, Ltd., as the lessor thereunder (the “Lease
Lessor”), certain financial institutions from time to time parties
thereto as lenders (the “Lease Lenders”), and SunTrust
Bank, as agent for such lenders (the “Lease Agent”; the
Lease Lessor, Lease Lenders and Lease Agent being referred to collectively herein as the
“SunTrust Synthetic Lease Creditors”), and (ii) any other
instruments, documents or agreements executed in connection therewith, in each case, as
the same has been and may hereafter be amended, restated, supplemented or otherwise
modified from time to time.
“Swing
Line Bank” means Bank One or any other successor Swing Line Bank
pursuant to the terms hereof.
“Swing
Line Commitment” means the obligation of the Swing Line Bank to make
Swing Line Loans to the Company up to a maximum principal Dollar Amount of $100,000,000 at
any one time outstanding.
“Swing
Line Loan” is defined in Section 2.2(A) hereof.
“Swing Line
Repayment Date” is defined in Section 2.2(D) hereof.
“Syndication
Agent” means each of JPMorgan Chase Bank and Citicorp North America,
Inc. in its respective capacity as a syndication agent for itself and the Lenders.
“Synthetic
Lease” means a financing structure that qualifies as an operating
lease for financial reporting purposes under Agreement Accounting Principles, but is
considered a loan for tax purposes.
“Synthetic
Lease Obligations” means any liabilities under any Synthetic Lease.
“Taxes”
is defined in Section 2.14(E)(i) hereof.
“Termination
Date” means the earlier of (a) the Revolving Loan Termination Date,
and (b) the date of termination in whole of the Aggregate Revolving Loan Commitment
pursuant to Section 2.5 or 9.1 hereof.
“Termination
Event” means (i) a Reportable Event with respect to any Benefit Plan;
(ii) the withdrawal of the Company or any member of the Controlled Group from a Benefit
Plan during a plan year in which the Company or such Controlled Group member was a
“substantial employer” as defined in Section 4001(a)(2) of ERISA; (iii) the
imposition of an obligation on the Company or any member of the Controlled Group under
Section 4041 of ERISA to provide affected parties written notice of intent to terminate a
Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC or any similar foreign governmental authority of proceedings to
terminate or appoint a Trustee to administer a Benefit Plan or Foreign Pension Plan; (v)
any event or condition which could reasonably constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any Benefit
Plan; (vi) the partial or complete withdrawal of the Company or any member of the
Controlled Group from a Multiemployer Plan or Foreign Pension Plan or (vii) the
termination or reorganization of a Multiemployer Plan.
“Total
Indebtedness” means, as of the end of any fiscal quarter of the
Company, (i) all Indebtedness of the Company and its Subsidiaries as at such date, but
excluding (x) Indebtedness in respect of the Preferred Capital Securities, (y) up to
$75,000,000 of Receivables Facility Attributable Indebtedness arising in connection with
Foreign Factoring Transactions and (z) up to $250,000,000 of Receivables Facility
Attributable Indebtedness arising in connection with Permitted Receivables Financings
minus (ii) the amount identified on the Company’s consolidated balance sheet
as “cash and cash equivalents” as of the last day of such fiscal quarter, but
solely to the extent that:
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(i) |
such cash and cash equivalents exceed $50,000,000 but are less than
$150,000,000; and |
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(ii) |
such cash and cash equivalents are not subject to a Lien (including, without
limitation, any Lien permitted hereunder), setoff (other than ordinary course
setoff rights of a depository bank arising under a bank depository agreement for
customary fees, charges and other account-related expenses due to such
depository bank thereunder), counterclaim, recoupment, defense or other right in
favor of any Person (other than the Administrative Agent, for the benefit of
itself and the other Holders of Obligations). |
“Transferee”
is defined in Section 13.4 hereof.
“Transitional
Letters of Credit” is defined in Section 3.2 hereof.
“Type”
means, with respect to any Advance, its nature as a Floating Rate Advance or a
Eurocurrency Rate Advance and with respect to any Loan, its nature as a Floating Rate Loan
or a Eurocurrency Rate Loan.
“Unfunded
Liabilities” means the amount (if any) by which the present value of
all vested and unvested accrued benefits under all Benefit Plans exceeds the fair market
value of all such Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plans using PBGC actuarial assumptions for single
employer plan terminations.
“Unmatured
Default” means an event which, but for the lapse of time or the giving
of notice, or both, would constitute a Default.
“Venturer”
has the meaning given that term in the definition of Joint Venture above.
“Weighted
Average Life to Maturity” means when applied to any Indebtedness at
any date, the number of years obtained by dividing (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled, directly
or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or
by such Person and one or more Wholly-Owned Subsidiaries of such Person or (ii) any
partnership, limited liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled.
The
foregoing definitions shall be equally applicable to both the singular and plural forms of
the defined terms. Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance with Agreement
Accounting Principles.
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1.2. |
References. Any references to Subsidiaries of the Company set forth
herein with respect to representations and warranties which deal with historical
matters shall be deemed to include the Company and its Subsidiaries and shall
not in any way be construed as consent by the Administrative Agent or any Lender
to the establishment, maintenance or acquisition of any Subsidiary, except as
may otherwise be permitted hereunder. |
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1.3. |
Company Acting on Behalf of Itself and Subsidiary Borrowers. Whether or
not expressly provided herein, each notice or certificate delivered hereunder or
in connection herewith or the other Loan Documents by or to the Company (in its
capacity as a Borrower) or an officer thereof, and each notice or consent
requested by or from the Company (in its capacity as a Borrower) or an officer
thereof, shall be so delivered or given to, by or on behalf of the Company for
the benefit of itself and the Subsidiary Borrowers. In furtherance and without
limitation of the foregoing, the Company is hereby authorized and given a power
of attorney by and on behalf of each of the Subsidiary Borrowers to perform and
accept any and all such actions on its behalf under this Agreement and the other
Loan Documents. |
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1.4. |
Joint and Several Liability for Obligations of the Company and Domestic
Subsidiary Borrowers; Joint and Several Liability for Obligations of the Foreign
Subsidiary Borrowers; No Liability of Foreign Subsidiary Borrowers for
Obligations of the Company or the Domestic Subsidiary Borrowers |
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(A) |
Joint and Several Liability for Obligations of the Company and Domestic
Subsidiary Borrowers. Notwithstanding anything to the contrary contained
herein, each of the Company and each Domestic Subsidiary Borrower jointly and
severally hereby irrevocably and unconditionally retains and accepts, not merely
as a surety but also as a co-debtor, joint and several liability with one
another with respect to the payment and performance of all of the Obligations of
or attributable to such Borrowers arising hereunder or under the other Loan
Documents, it being the intention of the parties hereto that all of such
Obligations shall be the joint and several obligations of the Company and the
Domestic Subsidiary Borrowers without preferences or distinction among them.
Each provision hereunder or in the Loan Documents relating to the obligations or
liabilities of the Company or any Domestic Subsidiary Borrower shall be deemed
to include a reference to all such Borrowers, as joint and several obligors for
such obligations and liabilities, whether or not a specific reference to any
other Borrower is included therein. |
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(B) |
Joint and Several Liability for Obligations of the Foreign Subsidiary
Borrowers. Notwithstanding anything to the contrary contained herein, each
of the Company and each Domestic Subsidiary Borrower jointly and severally
hereby irrevocably and unconditionally retains and accepts, not merely as a
surety but also as a co-debtor, joint and several liability with the Foreign
Subsidiary Borrowers (and the Foreign Subsidiary Borrowers retain and accept
such joint and several liability with one another) with respect to the payment
and performance of all of the Obligations of or attributable to the Foreign
Subsidiary Borrowers arising hereunder or under the other Loan Documents, it
being the intention of the parties hereto that all of such Obligations shall be
the joint and several obligations of the Company, each Domestic Subsidiary
Borrower and each Foreign Subsidiary Borrower without preferences or distinction
among them. Each provision hereunder or in the Loan Documents relating to the
obligations or liabilities of any Foreign Subsidiary Borrower shall be deemed to
include a reference to the Company, the Domestic Subsidiary Borrowers and any
other Foreign Subsidiary Borrower, as a joint and several obligor for such
obligations and liabilities, whether or not a specific reference to the Company,
any Domestic Subsidiary Borrower or any other Foreign Subsidiary Borrower is
included therein. |
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(C) |
No Liability of Foreign Subsidiary Borrowers for Obligations of the Company
or the Domestic Subsidiary Borrowers. Notwithstanding anything to the
contrary contained herein and notwithstanding that the Company and the Domestic
Subsidiary Borrowers shall be liable for all of the Loans and other Obligations
of all Borrowers hereunder, no Foreign Subsidiary Borrower shall be liable for
the Loans made to or any other Obligations incurred solely by or on behalf of
the Company or any Domestic Subsidiary Borrower; provided,
however, that at any time that, and for so long as, any Foreign
Subsidiary Borrower is a Special Foreign Subsidiary Borrower, this clause
(C) shall not apply to such Special Foreign Subsidiary Borrower and such
Special Foreign Subsidiary Borrower shall be treated as a Domestic Subsidiary
Borrower for the purposes of the remaining provisions of this Section
1.4. |
ARTICLE II: REVOLVING
LOAN FACILITIES
| |
(A) |
Revolving Loan Commitment. Upon the satisfaction of the applicable
conditions precedent set forth in Sections 5.1, 5.2 and
5.3, from and including the Closing Date and prior to the Termination
Date, each Lender severally and not jointly agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans to the Borrowers from time
to time, in any Agreed Currency, in a Dollar Amount not to exceed such
Lender’s Pro Rata Share of Revolving Credit Availability at such time (each
individually, a “Revolving Loan” and,
collectively, the “Revolving Loans”);
provided, however, that (i) at no time shall the Dollar Amount of
the Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment
and (ii) at no time shall the Dollar Amount of the Revolving Credit Obligations
denominated in Agreed Currencies other than Dollars exceed the Foreign Currency
Sublimit. Subject to the terms of this Agreement, the Borrowers may borrow,
repay and reborrow Revolving Loans at any time prior to the Termination Date.
The Revolving Loans made pursuant to this Section 2.1 shall be, at the
option of the Borrowers, selected in accordance with Section 2.7, either
Floating Rate Advances in Dollars or Eurocurrency Rate Advances in any Agreed
Currency; provided, however, that (i) no Eurocurrency Rate
Advances in Dollars shall be made pursuant to this Section 2.1 on or
prior to the third (3rd) Business Day after the Closing Date and (ii) no
Eurocurrency Rate Advances in Agreed Currencies other than Dollars shall be made
pursuant to this Section 2.1 on or prior to the fourth (4th) Business Day
after the Closing Date; provided, further, however, that if
the Company (on behalf of itself or the Initial Subsidiary Borrower) delivers a
Borrowing/Election Notice, signed by it, together with appropriate documentation
in form and substance satisfactory to the Administrative Agent indemnifying the
Lenders for the amounts described in Section 4.4 on or before the third
(3rd) Business Day prior to the Closing Date, the Revolving Loans made on the
Closing Date or any date thereafter may be Eurocurrency Rate Advances in
Dollars. On the Termination Date, the Borrowers shall repay in full the
outstanding principal balance of the Revolving Loans. Each Advance under this
Section 2.1(A) shall consist of Revolving Loans made by each Lender
ratably in proportion to such Lender’s respective Pro Rata Share. |
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(B) |
Borrowing/Election Notice. The Company (on behalf of itself or any
Subsidiary Borrower) shall deliver to the Administrative Agent a
Borrowing/Election Notice, signed by it, in accordance with the terms of
Section 2.7, in order to request an Advance. |
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(C) |
Making of Revolving Loans. Promptly after receipt of the
Borrowing/Election Notice under Section 2.7 in respect of Revolving
Loans, the Administrative Agent shall notify each Lender in writing (including
electronic transmission, facsimile transmission or similar writing) of the
requested Revolving Loan. Each Lender shall make available its Revolving Loan in
accordance with the terms of Section 2.6. The Administrative Agent will
promptly make the funds so received from the Lenders available to the applicable
Borrower at the Administrative Agent’s office in Chicago, Illinois or the
applicable Eurocurrency Payment Office on the applicable Borrowing Date and
shall disburse such proceeds in accordance with the disbursement instructions
set forth in such Borrowing/Election Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its obligations
hereunder to make its Revolving Loan on such Borrowing Date. |
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(A) |
Amount of Swing Line Loans. Upon the satisfaction of the applicable
conditions precedent set forth in Section 5.1, 5.2 and 5.3,
from and including the Closing Date and prior to the Termination Date and in the
sole discretion of the Swing Line Bank, the Swing Line Bank agrees, on the terms
and conditions set forth in this Agreement, to make swing line loans to the
Borrowers from time to time, in any Agreed Currency, in an aggregate Dollar
Amount not to exceed the Swing Line Commitment (each, individually, a
“Swing Line Loan” and collectively, the
“Swing Line Loans”); provided,
however, that (i) at no time shall the Dollar Amount of the Revolving
Credit Obligations exceed the Aggregate Revolving Loan Commitment and (ii) at no
time shall the Dollar Amount of the Revolving Credit Obligations denominated in
Agreed Currencies other than Dollars exceed the Foreign Currency Sublimit. The
Swing Line Loans (if any) made on the Closing Date shall be in Dollars. Subject
to the terms of this Agreement, the Borrowers may borrow, repay and reborrow
Swing Line Loans at any time prior to the Termination Date. |
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(B) |
Borrowing/Election Notice. The Company (on behalf of itself or any
Subsidiary Borrower) shall deliver to the Administrative Agent and the Swing
Line Bank a Borrowing/Election Notice, signed by it, not later than 12:00 noon
(Chicago time) (x) on the Borrowing Date of each Swing Line Loan to be made in
Dollars and (y) one (1) Business Day prior to the Borrowing Date of each Swing
Line Loan to be made in an Agreed Currency other than Dollars, specifying (i)
the applicable Borrowing Date (which date shall be a Business Day), (ii) the
Agreed Currency applicable thereto and (iii) the aggregate amount of the
requested Swing Line Loan, which shall be an amount not less than $1,000,000 (or
the Equivalent Amount if denominated in an Agreed Currency other than Dollars)
and increments of $1,000,000 (or the Equivalent Amount if denominated in an
Agreed Currency other than Dollars) in excess thereof (or such other increment
to which the Company and the Swing Line Bank may agree with respect to any Swing
Line Loan). |
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(C) |
Making of Swing Line Loans. Not later than 2:00 p.m. (Chicago time) on
the applicable Borrowing Date, the Swing Line Bank shall make available its
Swing Line Loan, in funds immediately available in Chicago, Illinois to the
Administrative Agent at its address specified pursuant to Article XIV or
at the applicable Eurocurrency Payment Office. The Administrative Agent will
promptly make the funds so received from the Swing Line Bank available to the
applicable Borrower on the Borrowing Date at the Administrative Agent’s
aforesaid applicable address. |
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(D) |
Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in full
by the applicable Borrower on or before the tenth (10th) Business Day after the
Borrowing Date for such Swing Line Loan (in any case, the “Swing Line
Repayment Date”). The Borrowers may at any time pay, without
penalty or premium, all outstanding Swing Line Loans or, in a minimum amount of
$1,000,000 (or the Equivalent Amount if denominated in an Agreed Currency other
than Dollars) and increments of $1,000,000 (or the Equivalent Amount if
denominated in an Agreed Currency other than Dollars) in excess thereof (or such
other increment to which the Company and the Swing Line Bank may agree with
respect to any such payment), any portion of the outstanding Swing Line Loans,
upon notice to the Administrative Agent and the Swing Line Bank. In addition,
the Administrative Agent (i) may at any time in its sole discretion with respect
to any outstanding Swing Line Loan or (ii) shall on the applicable Swing Line
Repayment Date require each Lender (including the Swing Line Bank) to make a
Revolving Loan for the purpose of repaying such Swing Line Loan, which Revolving
Loan shall be (i) with respect to any Swing Line Loan denominated in a currency
that is an Agreed Currency with respect to Revolving Loans, in such currency in
an amount equal to such Lender’s Pro Rata Share of such Swing Line Loan or
(ii) with respect to any Swing Line Loan denominated in a currency that is not
an Agreed Currency with respect to Swing Line Loans, in Dollars in an amount
equal to such Lender’s Pro Rata Share of the Dollar Amount of such Swing
Line Loan. No later than 2:00 p.m. (Chicago time) on the date of any notice
received pursuant to this Section 2.2(D), each Lender shall make
available its required Revolving Loan or Revolving Loans, in funds immediately
available to the Administrative Agent in Chicago, Illinois at its address
specified pursuant to Article XIV or at the applicable Eurocurrency
Payment Office. Revolving Loans made pursuant to this Section 2.2(D), if
made in Dollars, shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurocurrency Rate Loans in
the manner provided in Section 2.9 and subject to the other conditions
and limitations therein set forth and set forth in this Article II
and in the definition of Interest Period. Revolving Loans made pursuant to this
Section 2.2(D), if made in an Agreed Currency other than Dollars, shall
initially be Eurocurrency Rate Loans having an Interest Period selected by the
Administrative Agent and thereafter shall be subject to Section 2.9 and
the other conditions and limitations therein set forth and set forth in this
Article II and in the definition of Interest Period. Unless a Lender
shall have notified the Swing Line Bank, prior to its making any Swing Line
Loan, that any applicable condition precedent set forth in Sections 5.1,
5.2 or 5.3 had not then been satisfied, such Lender’s
obligation to make Revolving Loans pursuant to this Section 2.2(D) to
repay Swing Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Administrative Agent, the Swing Line Bank
or any other Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or otherwise) of the
Company, or (d) any other circumstances, happening or event whatsoever. In the
event that any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.2(D), the Administrative Agent shall
be entitled to receive, retain and apply against such obligation the principal
and interest otherwise payable to such Lender hereunder until the Administrative
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied. In addition to the foregoing, if for any reason any Lender
fails to make available to the Administrative Agent any Revolving Loan required
to be made pursuant to this Section 2.2(D), such Lender shall be deemed,
at the option of the Administrative Agent, to have unconditionally and
irrevocably purchased from the Swing Line Bank, without recourse or warranty, an
undivided interest and participation in the applicable Swing Line Loan in the
amount and Agreed Currency of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Termination Date, the Borrowers shall repay in full the outstanding principal
balance of the Swing Line Loans. |
| |
2.3. |
Rate Options for all Advances; Maximum Interest Periods. The Swing Line
Loans shall be Floating Rate Advances (if denominated in Dollars) or shall bear
interest at such other rate as may be agreed to between the Company (on behalf
of itself or any Subsidiary Borrower) and the Swing Line Bank at the time of the
making of any such Swing Line Loan. The Revolving Loans may be Floating Rate
Advances or Eurocurrency Rate Advances, or a combination thereof, selected by
the Company (on behalf of itself or any Subsidiary Borrower) in accordance with
Sections 2.7 and 2.9. The Company may select, in accordance with
Sections 2.7 and 2.9, Rate Options and Interest Periods applicable
to portions of the Revolving Loans; provided, that there shall be no more
than eight (8) Interest Periods in effect with respect to all of the Loans at
any time; provided, further, that all Floating Rate Advances
hereunder shall be denominated in Dollars. |
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2.4. |
Optional Payments; Mandatory Prepayments. |
| |
(A) |
Optional Payments. The Borrowers may from time to time and at any time,
upon notice to the Administrative Agent, repay or prepay, without penalty or
premium, all or any part of outstanding Floating Rate Advances in an aggregate
minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess
thereof. Eurocurrency Rate Advances may be voluntarily repaid or prepaid prior
to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in Section 4.4, in an aggregate
minimum amount of $5,000,000 (or the Equivalent Amount if denominated in an
Agreed Currency other than Dollars) and in integral multiples of $1,000,000 (or
the Equivalent Amount if denominated in an Agreed Currency other than Dollars)
in excess thereof; provided, that no Borrower may so prepay Eurocurrency
Rate Advances unless it shall have provided at least three (3) Business
Days’ prior written notice to the Administrative Agent of such prepayment
if the Advance subject to such prepayment is denominated in Dollars and four (4)
Business Days’ prior written notice to the Administrative Agent if the
Advance subject to such prepayment is denominated in an Agreed Currency other
than Dollars. |
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(B) |
Mandatory Prepayments of Revolving Loans and Related Mandatory Reduction of
Commitments. |
| |
(i) |
If at any time and for any reason (other than fluctuations in currency exchange
rates) the Net Aggregate Credit Exposure is greater than the Aggregate Revolving
Loan Commitment, the Borrowers shall immediately prepay Loans (or, to the extent
such excess is greater than the aggregate outstanding principal balance of the
Loans, pay immediately available funds to the Administrative Agent, which funds
shall be held in the L/C Collateral Account) in an aggregate amount equal to
such excess. |
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(ii) |
The Administrative Agent shall determine the Net Aggregate Credit Exposure as of
the end of each Interest Period related to any Eurocurrency Rate Advance and at
any other time as the Administrative Agent shall determine in its discretion. If
as of the date of any such determination, solely as a result of fluctuations in
currency exchange rates: |
| |
(a) |
the Net Aggregate Credit Exposure exceeds one hundred five percent (105%) of the
Aggregate Revolving Loan Commitment, the Borrowers for the ratable benefit of
the Lenders shall immediately prepay Loans (or, to the extent such excess is
greater than the aggregate outstanding principal balance of the Loans, pay
immediately available funds to the Administrative Agent, which funds shall be
held in the L/C Collateral Account) in an aggregate amount such that after
giving effect thereto the Net Aggregate Credit Exposure is less than or equal to
the Aggregate Revolving Loan Commitment; or |
| |
(b) |
the portion of the Net Aggregate Credit Exposure denominated in Agreed
Currencies other than Dollars exceeds one hundred five percent (105%) of the
Foreign Currency Sublimit, the Borrowers for the ratable benefit of the Lenders
shall immediately prepay Loans (or, to the extent such excess is greater than
the aggregate outstanding principal balance of the Loans, pay immediately
available funds to the Administrative Agent, which funds shall be held in the
L/C Collateral Account) in an aggregate amount such that after giving effect
thereto the portion of the Net Aggregate Credit Exposure denominated in Agreed
Currencies other than Dollars is less than or equal to the Foreign Currency
Sublimit. |
| |
(iii) |
If as of the date of any determination of the Net Aggregate Credit Exposure by
the Administrative Agent pursuant to clause (ii) above or Section
9.1(C) (x) no Default or Unmatured Default has occurred and is continuing,
(y) the Aggregate Revolving Loan Commitment exceeds the Net Aggregate Credit
Exposure and (z) the amount of funds on deposit in the L/C Collateral Account is
greater than zero, then the Administrative Agent shall release and disburse to
the Company from the L/C Collateral Account funds in a Dollar Amount equal to
the lesser of the excess described in the foregoing clause (y) and the
Dollar Amount of funds on deposit in the L/C Collateral Account;
provided, that, after giving effect to any such release and disbursement,
the portion of the Net Aggregate Credit Exposure denominated in Agreed
Currencies other than Dollars shall not exceed the Foreign Currency Sublimit. |
| |
(iv) |
All of the mandatory prepayments made hereunder shall be applied first to
Floating Rate Advances and to any Eurocurrency Rate Advances maturing on such
date and then to subsequently maturing Eurocurrency Rate Advances in order of
maturity, subject to Section 4.4 hereof. |
| |
2.5. |
Voluntary Reduction of Commitments. The Company (on behalf of itself and
the Subsidiary Borrowers) may permanently reduce the Aggregate Revolving Loan
Commitment in whole, or in part ratably among the Lenders, in an aggregate
minimum amount of $5,000,000 with respect thereto and integral multiples of
$2,500,000 in excess of that amount with respect thereto (unless the Aggregate
Revolving Loan Commitment is reduced in whole), upon at least three (3) Business
Days’ prior written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction; provided, however, that
the amount of the Aggregate Revolving Loan Commitment may not be reduced below
the Dollar Amount of the Revolving Credit Obligations. All accrued facility fees
and utilization fees shall be payable on the effective date of any termination
of the obligations of the Lenders to make Loans hereunder. |
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2.6. |
Method of Borrowing. On each Borrowing Date, each Lender shall make
available its Revolving Loan (i) if such Loan is denominated in Dollars, not
later than 12:00 noon (Chicago time) in Federal or other funds immediately
available to the Administrative Agent, in Chicago, Illinois at its address
specified in or pursuant to Article XIV and (ii) if such Loan is
denominated in an Agreed Currency other than Dollars, not later than 1:00 p.m.
(local time in the city of the Administrative Agent’s Eurocurrency Payment
Office for such currency), in such funds as may then be customary for the
settlement of international transactions in such currency in the city of and at
the address of the Administrative Agent’s Eurocurrency Payment Office for
such currency. The Administrative Agent will promptly make the funds so received
from the Lenders available to the applicable Borrower at the Administrative
Agent’s aforesaid applicable address. |
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2.7. |
Method of Selecting Types, Currency and Interest Periods for New
Advances. The Company (on behalf of itself or any applicable Subsidiary
Borrower) shall select the Type of Advance and, in the case of each Eurocurrency
Rate Advance, the Interest Period and Agreed Currency applicable thereto, for
each Advance to be made pursuant to Section 2.1(A). The Company shall
give the Administrative Agent irrevocable notice in substantially the form of
Exhibit B hereto (a “Borrowing/Election
Notice”) not later than 11:00 a.m. (Chicago time) (a) on the
proposed Borrowing Date of each Floating Rate Advance, (b) three (3) Business
Days before the Borrowing Date for each Eurocurrency Rate Advance to be made in
Dollars, and (c) four (4) Business Days before the Borrowing Date for each
Eurocurrency Rate Advance to be made in an Agreed Currency other than Dollars,
specifying: (w) the Borrowing Date (which shall be a Business Day) of such
Advance; (x) the aggregate amount of such Advance; (y) the Type of Advance
selected; and (z) in the case of each Eurocurrency Rate Advance, the Interest
Period and Agreed Currency applicable thereto; provided, however,
that with respect to any borrowing in Dollars on or prior to the third (3rd)
Business Day following the Closing Date, such notice may be delivered in
accordance with the terms of Section 2.1(A), which notice shall be
accompanied by the documentation specified in such Section, if applicable. All
Obligations other than Eurocurrency Rate Advances shall bear interest from and
including the date of the making of such Advance or Swing Line Loan, in the case
of Advances and Swing Line Loans, and the date such Obligation is due and owing
in the case of such other Obligations, to (but not including) the date of
repayment thereof at the Floating Rate changing when and as such Floating Rate
changes. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurocurrency Rate Advance shall bear
interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
Eurocurrency Rate determined as applicable to such Eurocurrency Rate Advance in
accordance with the terms hereof. |
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2.8. |
Minimum Amount of Each Advance. Each Advance (other than an Advance to
repay Swing Line Loans or a Reimbursement Obligation) shall be in a minimum
amount of $5,000,000 (or the Equivalent Amount if denominated in an Agreed
Currency other than Dollars) and in multiples of $1,000,000 (or the Equivalent
Amount if denominated in an Agreed Currency other than Dollars) if in excess
thereof; provided, however, that any Floating Rate Advance may be
in the Dollar Amount of the unused Aggregate Revolving Loan Commitment. |
| |
2.9. |
Method of Selecting Types, Currency and Interest Periods for Conversion and
Continuation of Outstanding Advances. |
| |
(A) |
Right to Convert. The Company (on behalf of itself or any Subsidiary
Borrower) may elect from time to time, subject to the provisions of Section
2.3 and this Section 2.9, to convert all or any part of an Advance of
any Type into any other Type or Types of Advance; provided, that any
conversion of any Eurocurrency Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto. |
| |
(B) |
Automatic Conversion and Continuation. Each Floating Rate Advance shall
continue as a Floating Rate Advance unless and until such Floating Rate Advance
is converted into a Eurocurrency Rate Advance. Each Eurocurrency Rate Advance in
Dollars shall continue as a Eurocurrency Rate Advance in Dollars until the end
of the then applicable Interest Period therefor, at which time such Eurocurrency
Rate Advance shall be automatically converted into a Floating Rate Advance
unless the Company shall have given the Administrative Agent notice in
accordance with Section 2.9(D) requesting that, at the end of such
Interest Period, such Eurocurrency Rate Advance continue as a Eurocurrency Rate
Advance in Dollars. Unless a Borrowing/Election Notice shall have timely been
given in accordance with the terms of this Section 2.9, each Eurocurrency
Rate Advance in an Agreed Currency other than Dollars shall automatically
continue as a Eurocurrency Rate Advance in such Agreed Currency with an Interest
Period of one (1) month. |
| |
(C) |
No Conversion Post-Default or Post-Unmatured Default. Notwithstanding
anything to the contrary contained in Section 2.9(A) or 2.9(B), no
Advance may be converted into or continued as a Eurocurrency Rate Advance
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing. |
| |
(D) |
Borrowing/Election Notice. The Company (on behalf of itself or any
Subsidiary Borrower) shall give the Administrative Agent an irrevocable
Borrowing/Election Notice of each conversion of a Floating Rate Advance into a
Eurocurrency Rate Advance or continuation of a Eurocurrency Rate Advance not
later than 11:00 a.m. (Chicago time) (x) three (3) Business Days prior to the
date of the requested conversion or continuation, with respect to any Advance to
be converted or continued as a Eurocurrency Rate Advance in Dollars, and (y)
four (4) Business Days prior to the date of the requested conversion or
continuation with respect to any Advance to be converted or continued as a
Eurocurrency Rate Advance in an Agreed Currency other than Dollars, specifying:
(i) the requested date (which shall be a Business Day) of such conversion or
continuation; (ii) the amount and Type of the Advance to be converted or
continued; and (iii) the amount of Eurocurrency Rate Advance(s) into which such
Advance is to be converted or continued and the Agreed Currency and Interest
Period applicable thereto. |
| |
(E) |
Limitations on Conversion. Notwithstanding anything herein to the
contrary, at the election of the Company under this Section 2.9,
Eurocurrency Rate Advances in an Agreed Currency may be converted and/or
continued as Eurocurrency Rate Advances only in the same Agreed Currency. |
| |
2.10. |
Default Rate. After the occurrence and during the continuance of a
Default, at the option of the Administrative Agent or at the direction of the
Required Lenders, the interest rate(s) applicable to the Obligations shall be
equal to the then applicable rate plus two percent (2.0%) per annum, and
the fee described in Section 3.8(A) shall be equal to the then Applicable
L/C Fee Percentage plus two percent (2.0%) per annum. |
| |
(A) |
All payments of principal, interest, fees, commissions and L/C Obligations
hereunder shall be made, without setoff, deduction or counterclaim (unless
indicated otherwise in Section 2.14(E)), in immediately available funds
to the Administrative Agent (i) at the Administrative Agent’s address
specified pursuant to Article XIV with respect to Advances or other
Obligations denominated in Dollars and (ii) at the applicable Eurocurrency
Payment Office with respect to any Advance or other Obligations denominated in
an Agreed Currency other than Dollars, or at any other Lending Installation of
the Administrative Agent specified in writing by the Administrative Agent to the
Company, by 1:00 p.m. (Chicago time) on the date when due and shall be made
ratably among the Lenders (unless such amount is not to be shared ratably in
accordance with the terms hereof). Each Advance shall be repaid or prepaid in
the Agreed Currency in which it was made in the amount borrowed and interest
payable thereon shall also be paid in such currency. Each payment delivered to
the Administrative Agent for the account of any Lender shall be delivered
promptly by the Administrative Agent to such Lender in the same type of funds
which the Administrative Agent received at its address specified pursuant to
Article XIV, at the applicable Eurocurrency Payment Office or at any
Lending Installation specified in a notice received by the Administrative Agent
from such Lender. Each of the Company and the Domestic Subsidiary Borrowers
authorizes the Administrative Agent to charge the accounts of such Borrower
maintained with Bank One for each payment of principal, interest, fees,
commissions, L/C Obligations or any other Obligations as it becomes due
hereunder. In addition, each Foreign Subsidiary Borrower authorizes the
Administrative Agent to charge any account of such Foreign Subsidiary Borrower
maintained with Bank One for each payment of principal, interest, fees,
commissions, L/C Obligations or any other Obligations as it becomes due
hereunder (it being understood and agreed that no account of any Foreign
Subsidiary Borrower shall be charged for any amount owing in respect of
Obligations incurred solely by or on behalf of the Company or any Domestic
Subsidiary Borrower unless such Foreign Subsidiary Borrower shall be jointly and
severally liable for the Obligations of all Borrowers at such time pursuant to
Section 1.4). Each reference to the Administrative Agent in this
Section 2.11 shall also be deemed to refer, and shall apply equally, to
the Issuing Bank, in the case of payments required to be made by the Company to
the Issuing Bank pursuant to Article III. |
| |
(B) |
Notwithstanding the foregoing provisions of this Section 2.11, if, after
the making of any Advance in any Agreed Currency other than Dollars, currency
control or exchange regulations are imposed in the country which issues such
Agreed Currency, with the result that different types of such Agreed Currency
(the “New Currency”) are introduced and the type
of currency in which the Advance was made (the “Original
Currency”) no longer exists or any Borrower is not able to
make payment to the Administrative Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the Borrowers hereunder in
such currency shall be made to the Administrative Agent in such amount and such
type of the New Currency or Dollars as shall be the Equivalent Amount of such
payment otherwise due hereunder in the Original Currency, it being the intention
of the parties hereto that the Borrowers take all risks of the imposition of any
such currency control or exchange regulations. |
| |
(A) |
Loan Account. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a “Loan
Account”) evidencing the indebtedness of the Borrowers to
such Lender owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder. |
| |
(B) |
Register. The Register maintained by the Administrative Agent pursuant to
Section 13.3(D) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and the amount of each Loan made hereunder, the Type thereof and
the Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 13.3, (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender’s share thereof and (v) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all fees, charges,
expenses and interest. |
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(C) |
Entries in Loan Account and Register. The entries made in the Loan
Account, the Register and the other accounts maintained pursuant to clauses
(A) or (B) of this Section shall be conclusive and binding for all
purposes, absent manifest error, unless the Company (on behalf of itself or any
Subsidiary Borrower) objects to information contained in the Loan Accounts, the
Register or the other accounts within thirty (30) days of the Company’s
receipt of such information; provided, that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement. |
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(D) |
Notes Upon Request. Any Lender may request that the Loans made by it each
be evidenced by a promissory note in substantially the form of Exhibit I
to evidence such Lender’s Loans. In such event, each Borrower shall
prepare, execute and deliver to such Lender such a promissory note for such
Loans payable to the order of such Lender. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (prior to any
assignment pursuant to Section 13.3) be represented by one or more
promissory notes in such form, payable to the order of the payee named therein,
except to the extent that any such Lender subsequently returns any such note for
cancellation and requests that such Loans once again be evidenced as described
in clauses (a) and (b) above. |
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2.13. |
Telephonic Notices. Each Borrower authorizes the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of the Company. The Company (on behalf of itself or any Subsidiary
Borrower) agrees to deliver promptly to the Administrative Agent a written
confirmation, signed by an Authorized Officer, if such confirmation is requested
by the Administrative Agent or any Lender, of each telephonic notice. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error. In case of
disagreement concerning such notices, if the Administrative Agent has recorded
telephonic borrowing notices, such recordings will be made available to the
Company upon the Company’s request therefor. |
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2.14. |
Promise to Pay; Interest Payment Dates; Fees; Interest and Fee Basis;
Taxes. |
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(A) |
Promise to Pay. Without limiting the provisions of Section 1.4
hereof, each Borrower unconditionally promises to pay when due the principal
amount of each Loan incurred by it and all other Obligations incurred by it, and
to pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents. |
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(B) |
Interest Payment Dates. Interest accrued on each Floating Rate Loan shall
be payable on each Payment Date, commencing with the first such date to occur
after the date hereof, upon any prepayment whether by acceleration or otherwise,
and at maturity (whether by acceleration or otherwise). Interest accrued on each
Eurocurrency Rate Loan shall be payable on the last day of its applicable
Interest Period, on any date on which such Eurocurrency Rate Loan is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Eurocurrency Rate Loan having an Interest Period longer than three months shall
also be payable on the last day of each three-month interval during such
Interest Period. Interest accrued on the principal balance of all other
Obligations shall be payable in arrears (i) on each Payment Date, commencing on
the first such Payment Date following the incurrence of such Obligations, (ii)
upon repayment thereof in full or in part and (iii) if not theretofore paid in
full, at the time such Obligations become due and payable (whether by
acceleration or otherwise). |
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(i) |
Facility Fee. The Company shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their Pro Rata Shares, from and after
the date of this Agreement until the date on which the Aggregate Revolving Loan
Commitment shall be terminated in whole, a facility fee accruing at a rate per
annum equal to the then Applicable Facility Fee Percentage on the amount of the
Aggregate Revolving Loan Commitment (whether used or unused). All such facility
fees payable under this clause (C)(i) shall be payable quarterly in
arrears on each Payment Date occurring after the date of this Agreement (with
the first such payment being calculated for the period from the Closing Date and
ending on September 30, 2004), and, in addition, on the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole. |
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(ii) |
Utilization Fee. If on any day during any fiscal quarter, the amount of
the Revolving Credit Obligations exceeds fifty percent (50%) of the Aggregate
Revolving Loan Commitment at such time, the Company shall pay to the
Administrative Agent, for the account of the Lenders in accordance with their
Pro Rata Shares, a utilization fee accruing at a rate per annum equal to the
then Applicable Utilization Fee Percentage on the Revolving Credit Obligations
for such day. All such utilization fees payable under this clause
(C)(ii) shall be payable quarterly in arrears on each Payment Date occurring
after the date of this Agreement (with the first such payment being calculated
for the period from the Closing Date and ending on September 30, 2004), and, in
addition, on the date on which the Aggregate Revolving Loan Commitment shall be
terminated in whole. |
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(iii) |
Fee Letters. The Company agrees to pay to the Administrative Agent, the
Syndication Agents and/or the Arrangers, as the case may be, the fees set forth
in the (x) letter agreement among the Administrative Agent, the Syndication
Agents, the Arrangers and the Company dated May 10, 2004, and (y) the letter
agreement between the Administrative Agent and the Company dated May 10, 2004,
in each case, payable at the times and in the amounts set forth therein. |
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(D) |
Interest and Fee Basis; Applicable Eurocurrency Margin, Applicable Floating
Rate Margin, Applicable L/C Fee Percentage, Applicable Facility Fee Percentage
and Applicable Utilization Fee Percentage. |
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(i) |
Interest on all Eurocurrency Rate Advances and on all fees shall be calculated
for actual days elapsed on the basis of a 360-day year. Interest on all Floating
Rate Advances shall be calculated for actual days elapsed on the basis of a 365-
or, when appropriate, 366-day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the amount paid if
payment is received prior to 2:00 p.m. (local time) at the place of payment. If
any payment of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment. |
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(ii) |
The Applicable Eurocurrency Margin, Applicable Floating Rate Margin, Applicable
L/C Fee Percentage, Applicable Facility Fee Percentage and Applicable
Utilization Fee Percentage shall be determined on the basis of the then
applicable Xxxxx’x Rating and S&P Rating, as described in the Pricing
Schedule hereto. |
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(i) |
Any and all payments by the Borrowers hereunder (whether in respect of
principal, interest, fees or otherwise) shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings or any interest, penalties or liabilities
with respect thereto imposed by any Governmental Authority including those
arising after the date hereof as a result of the adoption of or any change in
any law, treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes, franchise taxes and
branch profit taxes) as are imposed on or measured by such Lender’s or the
Administrative Agent’s, as the case may be, net income or similar taxes
imposed by the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Administrative Agent, as
the case may be, is incorporated or organized, maintains its principal office or
maintains a Lending Installation (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the Administrative
Agent or a Lender determines to be applicable to this Agreement, the other Loan
Documents, the Revolving Loan Commitments, the Loans or the Letters of Credit
being hereinafter referred to as “Taxes”). If any
Borrower shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under the other Loan Documents to any
Lender, any Lending Installation or the Administrative Agent, (a) the sum
payable shall be increased as may be necessary so that after making all required
deductions or withholdings (including deductions or withholdings applicable to
additional sums payable under this Section 2.14(E)) such Lender, such
Lending Installation or the Administrative Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions or
withholdings been made, (b) the applicable Borrower shall make such deductions
or withholdings, and (c) the applicable Borrower shall pay the full amount
deducted or withheld to the relevant taxation authority or other authority in
accordance with applicable law. If any Tax, including, without limitation, any
withholding tax, of the United States of America or any other Governmental
Authority shall be or become applicable (x) after the date of this Agreement, to
such payments by the Borrowers made to the Lending Installation or any other
office that a Lender may claim as its Lending Installation, or (y) after such
Lender’s selection and designation of any other Lending Installation, to
such payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain its Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce the
Borrowers’ liability hereunder, if the making, funding or maintenance of
such Loans through such other Lending Installation of such Lender does not, in
the reasonable judgment of such Lender, otherwise adversely and materially
affect such Loans or the obligations under the Revolving Loan Commitments of
such Lender. |
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(ii) |
In addition, each Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder, from the issuance of Letters
of Credit hereunder, or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit (hereinafter
referred to as “Other Taxes”). |
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(iii) |
Each Borrower hereby agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental Authority on
amounts payable under this Section 2.14(E)) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within thirty (30) days after the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to any Lender or the
Administrative Agent under this Section 2.14(E) submitted to the Company
and the Administrative Agent (if a Lender is so submitting) by such Lender or
the Administrative Agent shall show in reasonable detail the amount payable and
the calculations used to determine such amount and shall, absent manifest error,
be final, conclusive and binding upon all parties hereto. |
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(iv) |
With respect to any deduction or withholding for or on account of any Taxes or
Other Taxes pursuant to this Section 2.14(E), and to confirm that all
Taxes or Other Taxes required to be paid pursuant to this Section 2.14(E)
have been paid to the appropriate Governmental Authorities, the Company (on
behalf of itself or any Subsidiary Borrower) shall promptly (and in any event
not later than thirty (30) days after receipt) furnish to each Lender and the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof and such further certificates, receipts and other documents as
may be required (in the judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative Agent may be
entitled. |
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(v) |
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers contained in this
Section 2.14(E) shall survive the payment in full of all Obligations
hereunder, the termination of the Letters of Credit and the termination of this
Agreement. |
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(vi) |
Each Lender (including any Replacement Lender, Designated Lender or Purchaser)
that is not created or organized under the laws of the United States of America
or a political subdivision thereof (each a “Non-U.S.
Lender”) shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which such Lender
becomes a Lender pursuant to Section 13.3 hereof (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but only
for so long as such Non-U.S. Lender is legally entitled to do so), either (A)
two (2) duly completed copies of either IRS Form W-8BEN, or IRS Form W-8ECI, or
in either case, an applicable successor form; or (B) in the case of a Non-U.S.
Lender that is not legally entitled to deliver the forms listed in clause
(vi)(A), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, a
“10 percent shareholder” of the Company within the meaning of Section
881(c)(3)(B) of the Code or a controlled foreign corporation receiving interest
from a related person within the meaning of Section 881(c)(3)(C) of the Code
(such certificate, an “Exemption Certificate”)
and (y) two (2) duly completed copies of IRS Form W-8BEN or applicable successor
form, in each case, certifying that such Lender is exempt from United States
withholding tax and is entitled to receive payments under this Agreement without
deduction for withholding of any United States federal taxes. Each Lender (other
than a Non-U.S. Lender) shall, on or before the date on which it becomes a party
to this Agreement, deliver to each of the Company and the Administrative Agent
two duly completed copies of United States IRS Form W-9 (or any successor form)
establishing that such Lender is a U.S. person (within the meaning of Section
7701(A)(30) of the Code) and is not subject to backup withholding. Each Lender
further agrees to deliver to the Company and the Administrative Agent from time
to time a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender in a form satisfactory to the Company and the
Administrative Agent, before or promptly upon the occurrence of any event
requiring a change in the most recent certificate previously delivered by it to
the Company and the Administrative Agent pursuant to this Section
2.14(E)(vi). Further, each Lender which delivers a form or certificate
pursuant to this Section 2.14(E)(vi) covenants and agrees to
deliver to the Company and the Administrative Agent within fifteen (15) days
prior to the expiration of such form, for so long as this Agreement is still in
effect, another such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or forms
required under the Code or the applicable regulations promulgated thereunder). |
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Each
Lender shall promptly furnish to the Company and the Administrative Agent such additional
documents as may be reasonably required by the Company or the Administrative Agent to
establish any exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to such Lender.
Notwithstanding any other provision of this Section 2.14(E), the Borrowers shall
not be obligated to gross up any payments to any Lender pursuant to Section
2.14(E)(i), or to indemnify any Lender pursuant to Section 2.14(E)(iii), in
respect of United States federal withholding taxes to the extent imposed as a result of
(x) the failure of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.14(E)(vi), (y) such form or forms and/or Exemption Certificate or
the information or certifications made therein by the Lender being untrue or inaccurate on
the date delivered in any material respect or (z) the Lender designating a successor
Lending Installation at which it maintains its Loans which has the effect of causing such
Lender to become obligated for tax payments in excess of those in effect immediately prior
to such designation; provided, however, that the Borrowers shall be
obligated to gross up any payments to any such Lender pursuant to Section
2.14(E)(i), and to indemnify any such Lender pursuant to Section 2.14(E)(iii),
in respect of United States federal withholding taxes if (i) any such failure to deliver a
form or forms or an Exemption Certificate or the failure of such form or forms or
exemption certificate to establish a complete exemption from U.S. federal withholding tax
or inaccuracy or untruth contained therein resulted from a change in any applicable
statute, treaty, regulation or other applicable law or any interpretation of any of the
foregoing occurring after the date such Lender became a party hereto, which change
rendered such Lender no longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S. federal withholding
tax, or rendered the information or the certifications made in such form or forms or
Exemption Certificate untrue or inaccurate in any material respect, (ii) the redesignation
of the Lender’s Lending Installation was made at the request of any Borrower or (iii)
the obligation to gross up payments to any such Lender pursuant to Section
2.14(E)(i), or to indemnify any such Lender pursuant to Section 2.14(E)(iii),
is with respect to a Purchaser that becomes a Purchaser as a result of an assignment made
at the request of any Borrower.
|
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(vii) |
Upon the request, and at the expense of, the Borrowers, each Lender to which any
Borrower is required to pay any additional amount pursuant to this Section
2.14(E) shall reasonably afford the Company (on behalf of itself or any
Subsidiary Borrower) the opportunity to contest, and shall reasonably cooperate
with the Company in contesting, the imposition of any Tax giving rise to such
payment; provided, that (a) such Lender shall not be required to afford
the Company the opportunity to so contest unless the Company shall have
confirmed in writing to such Lender its obligation (or the obligation of any
Subsidiary Borrower) to pay such amounts pursuant to this Agreement; and (b) the
Borrowers shall reimburse such Lender for its attorneys’ and
accountants’ fees and disbursements incurred in so cooperating with the
Company in contesting the imposition of such Tax; provided,
however, that notwithstanding the foregoing, no Lender shall be required
to afford the Company the opportunity to contest, or cooperate with the Company
in contesting, the imposition of any Taxes, if such Lender in good faith
determines that to do so would have an adverse effect on it. |
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2.15. |
Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving
Loan Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Commitment Increase Notice,
Borrowing/Election Notice (other than in respect of a Swing Line Loan) and
repayment notice received by it hereunder. The Administrative Agent will notify
each Lender of the interest rate applicable to each Floating Rate Loan and
Eurocurrency Rate Loan and the Agreed Currency applicable to each Eurocurrency
Rate Loan promptly upon determination of such interest rate and Agreed Currency
and will give each Lender prompt notice of each change in the Alternate Base
Rate. |
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2.16. |
Lending Installations. Each Lender may book its Loans or Letters of
Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made. |
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2.17. |
Non-Receipt of Funds by the Administrative Agent. Unless a Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date
on which it is scheduled to make payment to the Administrative Agent of (a) in
the case of a Lender, the proceeds of a Loan or (b) in the case of a Borrower, a
payment of principal, interest or fees to the Administrative Agent for the
account of the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan. |
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2.18. |
Termination Date. This Agreement shall be effective until the Termination
Date. Notwithstanding the termination of this Agreement, until (A) all of the
Obligations (other than contingent indemnity obligations) shall have been fully
paid and satisfied in cash, (B) all of the Revolving Loan Commitments shall have
been terminated in accordance with the terms of this Agreement and (C) all of
the Letters of Credit shall have expired, been canceled, terminated or cash
collateralized or otherwise supported in an amount and in a manner satisfactory
to the Administrative Agent and the Issuing Bank, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive. |
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2.19. |
Replacement of Certain Lenders. In the event a Lender (an
“Affected Lender”) shall have: (a) failed to fund
its Pro Rata Share of any Advance requested by a Borrower, or to fund a
Revolving Loan in order to repay Swing Line Loans pursuant to Section
2.2(D), which such Lender is obligated to fund under the terms of this
Agreement and which failure has not been cured, (b) requested compensation from
the Borrowers under Sections 2.14(E), 4.1 or 4.2 to recover
Taxes, Other Taxes or other additional costs incurred by such Lender which are
not being incurred generally by the other Lenders or (c) delivered a notice
pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurocurrency Rate Loans to the Company for reasons not generally applicable to
the other Lenders, then, in any such case, the Company or the Administrative
Agent may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by the Company and a copy to the
Company in the case of a demand by the Administrative Agent) for the Affected
Lender to assign, and such Affected Lender shall use commercially reasonable
efforts to assign, pursuant to one or more duly executed Assignment Agreements
five (5) Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 13.3(A) which the
Company or the Administrative Agent, as the case may be, shall have engaged for
such purpose (a “Replacement Lender”), all of
such Affected Lender’s rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, its Revolving Loan
Commitment, all Loans owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit and Swing Line Loans hereunder) in accordance with Section
13.3. The Administrative Agent agrees, upon the occurrence of such events
with respect to an Affected Lender and upon the written request of the Company,
to use its reasonable efforts to obtain the commitments from one or more
financial institutions to act as a Replacement Lender. The Administrative Agent
is authorized to execute one or more Assignment Agreements as attorney-in-fact
for any Affected Lender failing to execute and deliver the same within five (5)
Business Days after the date of such demand. Further, with respect to such
assignment, the Affected Lender shall have concurrently received, in cash, all
amounts due and owing to the Affected Lender hereunder or under any other Loan
Document, including, without limitation, the aggregate outstanding principal
amount of the Loans owed to such Lender, together with accrued interest thereon
through the date of such assignment, amounts payable under Sections
2.14(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.14(C) in the event of any
replacement of any Affected Lender under clause (b) or clause (c)
of this Section 2.19; provided that upon such Affected
Lender’s replacement, such Affected Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.14(E),
2.20, 2.21(B), 3.10, 4.1, 4.2, 4.4 and
10.7 (and each other provision of this Agreement or the other Loan
Documents whereby the Company or any of its Subsidiaries agrees to reimburse or
indemnify the Lenders), as well as to any fees accrued for its account hereunder
and not yet paid, and shall continue to be obligated under Section 11.8
for such amounts, obligations and liabilities as are due and payable up to and
including (but not after) the date such Affected Lender is replaced pursuant
hereto. |
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2.20. |
Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due from a Borrower or a Lender, the
Swing Line Bank or the Issuing Bank hereunder in the currency expressed to be
payable herein (the “specified currency”) into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent’s main office in Chicago, Illinois on the Business Day preceding that
on which the final, non-appealable judgment is given. The obligations in respect
of any sum due hereunder shall, notwithstanding any judgment in a currency other
than the specified currency, be discharged only to the extent that on the
Business Day following receipt of any sum adjudged to be so due in such other
currency by the party to whom such sum is owed, such party may in accordance
with normal, reasonable banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due in the specified currency, each party hereto
obligated to pay any such sum shall, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, indemnify the party to whom such sum is owed against such loss, and if
the amount of the specified currency so purchased exceeds the sum originally due
in the specified currency (and in the case of any Lender, any amounts shared
with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 12.2), the party to
whom such sum was owed shall remit such excess to the paying party. |
| |
2.21. |
Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of
Reimbursement Obligations. |
| |
(A) |
Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in this Article II with respect to any Advance in any Agreed
Currency other than Dollars, if there shall occur on or prior to the date of
such Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the reasonable opinion of the Company, the Administrative Agent or the
Required Lenders make it impracticable for the Eurocurrency Rate Loans
comprising such Advance to be denominated in such Agreed Currency, then the
Administrative Agent shall forthwith give notice thereof to the Company and the
Lenders, and such Eurocurrency Rate Loans shall not be denominated in such
currency but shall be made on such Borrowing Date in Dollars, in an aggregate
principal amount equal to the Dollar Amount of the aggregate principal amount
specified in the related Borrowing/Election Notice, as Floating Rate Loans,
unless the Company notifies the Administrative Agent at least one (1) Business
Day before such date that it elects not to borrow on such date. |
| |
(B) |
Calculation of Amounts. Except as set forth below, all amounts referenced
in this Article II shall be calculated using the Dollar Amount determined
based upon the Equivalent Amount in effect as of the date of any determination
thereof; provided, however, that to the extent the Borrowers shall
be obligated hereunder to pay in Dollars any Advance denominated in a currency
other than Dollars, such amount shall be paid in Dollars using the Dollar Amount
of the Advance (calculated based upon the Equivalent Amount in effect on the
date of payment thereof). Notwithstanding anything herein to the contrary, in
connection with Obligations payable by the Borrowers, the full risk of currency
fluctuations shall be borne by the Borrowers and each Borrower agrees to
indemnify and hold harmless the Issuing Bank, the Administrative Agent and the
Lenders from and against any loss resulting from any borrowing denominated in
any Agreed Currency other than Dollars that is not repaid to the Lenders on the
date of such borrowing. |
| |
2.22. |
Increase of Aggregate Revolving Loan Commitment. |
| |
(A) |
At any time, the Company may arrange (in consultation with the Administrative
Agent) for the Aggregate Revolving Loan Commitment to be increased by an
aggregate amount of up to $100,000,000 without the prior written consent of all
of the Lenders; provided, that the Aggregate Revolving Loan Commitment
shall at no time exceed $1,000,000,000. The Company shall provide notice of such
proposed increase in a written notice to the Administrative Agent and the
Lenders not less than twenty (20) Business Days prior to the proposed effective
date of such increase, which notice (a “Commitment Increase
Notice”) shall specify the amount of the proposed increase
in the Aggregate Revolving Loan Commitment and the proposed effective date of
such increase. No Lender shall have any obligation to increase its Revolving
Loan Commitment pursuant to a Commitment Increase Notice, and the Company shall
not be required to offer any Lender an opportunity to participate in the
requested increase. |
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(B) |
Not later than three (3) Business Days prior to the proposed effective date, the
Company shall notify the Administrative Agent of (i) any Lender (each, a
“Proposed Increase Lender”) that shall have
agreed to increase its Revolving Loan Commitment in connection with such
Commitment Increase Notice and (ii) any financial institution that shall have
agreed to become a “Lender” party hereto (each, a “Proposed
New Lender”) in connection with such Commitment Increase
Notice. Each Proposed Increase Lender and Proposed New Lender, and the
allocation of the proposed increase in the Aggregate Revolving Loan Commitment,
shall be subject to the consent of the Administrative Agent (which consent shall
not be unreasonably withheld). If the Company shall not have arranged for
Lenders and Proposed New Lenders to commit to increases in their Revolving Loan
Commitment or new Revolving Loan Commitments, as applicable, in an aggregate
amount equal to the proposed increase in the Aggregate Revolving Loan
Commitment, then the Company shall be deemed to have reduced the amount of its
Commitment Increase Notice to the aggregate amount of such increases and new
Revolving Loan Commitments. The Administrative Agent shall notify the Company
and the Lenders on or before the Business Day immediately prior to the proposed
effective date of the amount of each Lender’s and Proposed New
Lender’s Revolving Loan Commitment (the “Effective Commitment
Amount”) and the amount of the Aggregate Revolving Loan
Commitment, which amount shall be effective on the following Business Day. |
| |
(C) |
Any increase in the Aggregate Revolving Loan Commitment shall be subject to the
following conditions precedent: (i) the Company shall have obtained the consent
thereto of each Subsidiary Guarantor and its reaffirmation of any Loan Documents
executed by it, which consent and reaffirmation shall be in writing and in form
and substance reasonably satisfactory to the Administrative Agent, (ii) as of
the date of the Commitment Increase Notice and as of the proposed effective date
of the increase in the Aggregate Revolving Loan Commitment, all representations
and warranties shall be true and correct in all material respects as though made
on such date (unless any such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be true and
correct in all material respects as of such date) and no Default or Unmatured
Default shall have occurred and then be continuing, (iii) the Company, the
Administrative Agent and each Proposed New Lender or Proposed Increase Lender
shall have executed and delivered a Commitment and Acceptance
(“Commitment and Acceptance”) substantially in
the form of Exhibit L hereto and (iv) the Company and any Proposed New
Lender shall otherwise have executed and delivered such other instruments,
documents and agreements as the Administrative Agent shall have reasonably
requested in connection with such increase. If any fee shall be charged by the
Lenders in connection with any such increase, such fee shall be in accordance
with then prevailing market conditions, which market conditions shall have been
reasonably documented by the Administrative Agent to the Company. Upon
satisfaction of the conditions precedent to any increase in the Aggregate
Revolving Loan Commitment, the Administrative Agent shall promptly advise the
Company and each Lender of the effective date of such increase. Upon the
effective date of any increase in the Aggregate Revolving Loan Commitment that
is provided by a Proposed New Lender, such Proposed New Lender shall be a party
to this Agreement as a Lender and shall have the rights and obligations of a
Lender hereunder. Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment on the part of any Lender to increase its Revolving
Loan Commitment hereunder at any time. |
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(D) |
Upon the execution and delivery of such Commitment and Acceptance, the
Administrative Agent shall reallocate any outstanding Loans ratably among the
Lenders after giving effect to each such increase in the Aggregate Revolving
Loan Commitment; provided, that the Company hereby agrees to compensate
each Lender for all losses, expenses and liabilities incurred by such Lender in
connection with the sale and assignment of any Eurocurrency Rate Loans hereunder
on the terms and in the manner as set forth in Article IV. |
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2.23. |
Addition of Subsidiary Borrowers. The Company may at any time add as a
party to this Agreement a Wholly-Owned Subsidiary to become a “Subsidiary
Borrower” hereunder subject to (a) the consent of the Administrative Agent,
(b) the receipt of evidence satisfactory to the Administrative Agent that such
Subsidiary would not, in its capacity as a Borrower hereunder, be required by
law to withhold or deduct any Taxes from or in respect of any sum payable
hereunder by such Subsidiary to the Administrative Agent or any Lender unless an
exemption from such requirement can be obtained by such Subsidiary (with the
reasonable cooperation of the Administrative Agent and the Lenders) and that no
other adverse tax, regulatory or other consequences would affect the
Administrative Agent or the Lenders as a result of such Subsidiary’s status
as a Borrower, (c) the execution and delivery to the Administrative Agent of a
duly completed Assumption Letter by such Subsidiary, with the written consent of
the Company appearing thereon and (d) the execution and delivery to the
Administrative Agent and the Lenders of each other instrument, document and
agreement required by Section 5.3. Upon such satisfaction of all such
conditions, such Subsidiary shall for all purposes be a party hereto as a
Subsidiary Borrower as fully as if it had executed and delivered this Agreement. |
ARTICLE III: THE LETTER
OF CREDIT FACILITY
| |
3.1. |
Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrowers herein set forth, the Issuing Bank
hereby agrees to issue for the account of the Borrowers through the
Issuing Bank’s branches as it and the Borrowers may jointly agree, one or
more Letters of Credit denominated in any Agreed Currency in accordance with
this Article III from time to time during the period commencing on
the Closing Date and ending on the Business Day prior to the Termination Date
(but subject to Section 3.3 below). |
| |
3.2. |
Transitional Letters of Credit. Schedule 3.2 contains a schedule
of certain letters of credit issued for the account of the Company prior to the
Closing Date. Subject to the satisfaction of the applicable conditions contained
in Sections 5.1, 5.2 and 5.3, from and after the Closing
Date such letters of credit shall be deemed to be Letters of Credit issued
pursuant to this Article III for all purposes hereunder (each such Letter
of Credit, a “Transitional Letter of Credit”).
For purposes of clarification, each term or provision applicable to the issuance
of a Letter of Credit (including conditions applicable thereto) shall be deemed
to include the deemed issuance of the Transitional Letters of Credit on the
Closing Date. |
| |
3.3. |
Types and Amounts. No Issuing Bank shall have any obligation to and no
Issuing Bank shall: |
| |
(A) |
issue any Letter of Credit if on the date of issuance (or amendment), before or
after giving effect to the Letter of Credit requested hereunder, (i) the Dollar
Amount of the Revolving Credit Obligations at such time would exceed the
Aggregate Revolving Loan Commitment at such time, (ii) the Dollar Amount of the
Revolving Credit Obligations denominated in Agreed Currencies other than Dollars
at such time would exceed the Foreign Currency Sublimit or (iii) the aggregate
L/C Obligations would exceed $150,000,000; or |
| |
(B) |
issue any Letter of Credit which has an expiration date later than the date
which is the earlier of (x) one (1) year after the date of issuance thereof or
(y) five (5) Business Days immediately preceding the Revolving Loan Termination
Date; provided, that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which in no
event shall extend beyond the date referred to in clause (y) above). |
| |
(A) |
In addition to being subject to the satisfaction of the applicable conditions
contained in Sections 5.1, 5.2 and 5.3, the obligation of
the Issuing Bank to issue any Letter of Credit is subject to the satisfaction in
full of the following conditions: |
| |
(i) |
the Company (on behalf of the applicable Borrower) shall have delivered to the
Issuing Bank (with a copy to the Administrative Agent) at such times and in such
manner as the Issuing Bank may reasonably prescribe, a request for issuance of
such Letter of Credit in substantially the form of Exhibit C hereto (a
“Request For Letter of Credit”), and the Company
and such Borrower shall have delivered duly executed applications for such
Letter of Credit and such other documents, instructions and agreements as may be
required pursuant to the terms thereof (all such applications, documents,
instructions, and agreements being referred to herein as the “L/C
Documents”), and the proposed Letter of Credit shall be
reasonably satisfactory to the Issuing Bank as to form and content; and |
| |
(ii) |
as of the date of issuance no order, judgment or decree of any court, arbitrator
or Governmental Authority shall purport by its terms to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit and no law, rule or regulation
applicable to the Issuing Bank and no request or directive (whether or not
having the force of law) from a Governmental Authority with jurisdiction over
the Issuing Bank shall prohibit or request that the Issuing Bank refrain from
the issuance of Letters of Credit generally or the issuance of that Letter of
Credit. |
| |
(B) |
In the event of any conflict between the terms of this Agreement and the terms
of any application for a Letter of Credit, the terms of this Agreement shall
control. |
| |
3.5. |
Procedure for Issuance of Letters of Credit. |
| |
(A) |
Subject to the terms and conditions of this Article III and provided that
the applicable conditions set forth in Sections 5.1, 5.2 and
5.3 hereof have been satisfied, the Issuing Bank shall, on the requested
date, issue a Letter of Credit on behalf of the applicable Borrower in
accordance with the Issuing Bank’s usual and customary business practices
and, in this connection, the Issuing Bank may assume that the applicable
conditions set forth in Sections 5.1, 5.2 and 5.3 hereof have been
satisfied unless it shall have received notice to the contrary from the
Administrative Agent or a Lender or has knowledge that the applicable conditions
have not been met. |
| |
(B) |
The Issuing Bank shall give the Administrative Agent written or facsimile
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Letter of Credit; provided, however, that the
failure to provide such notice shall not result in any liability on the part of
the Issuing Bank. |
| |
(C) |
The Issuing Bank shall not extend or amend any Letter of Credit unless the
requirements of Sections 3.3, 3.4 and 3.5 are met as though
a new Letter of Credit was being requested and issued. |
| |
3.6. |
Letter of Credit Participation. On the date of this Agreement with
respect to the Transitional Letters of Credit and immediately upon the issuance
of each Letter of Credit hereunder, each Lender shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the
Issuing Bank an undivided interest and participation in and to such Letter of
Credit, the obligations of the applicable Borrower in respect thereof and the
liability of the Issuing Bank thereunder (collectively, an “L/C
Interest”) in an amount equal to the amount available for
drawing under such Letter of Credit multiplied by such Lender’s Pro Rata
Share. The Issuing Bank will notify each Lender promptly upon presentation to it
of an L/C Draft or upon any other draw under a Letter of Credit. On or before
the Business Day on which the Issuing Bank makes payment of each such L/C Draft
or, in the case of any other draw on a Letter of Credit, on demand by the
Administrative Agent or the Issuing Bank, each Lender shall make payment to the
Administrative Agent, for the account of the Issuing Bank, in immediately
available funds in the applicable Agreed Currency in an amount equal to such
Lender’s Pro Rata Share of the amount of such payment or draw. The
obligation of each Lender to reimburse the Issuing Bank under this Section
3.6 shall be unconditional, continuing, irrevocable and absolute. In the
event that any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 3.6, the Administrative Agent shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Administrative
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied; provided, however, that nothing contained in this
sentence shall relieve such Lender of its obligation to reimburse the Issuing
Bank for such amount in accordance with this Section 3.6. |
| |
3.7. |
Reimbursement Obligation. Each Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Issuing Bank or, if
applicable, the Administrative Agent, for the account of the Lenders, the amount
of each advance drawn under or pursuant to a Letter of Credit issued on behalf
of such Borrower or an L/C Draft related thereto (such obligation of such
Borrower to reimburse the Issuing Bank or the Administrative Agent for an
advance made under a Letter of Credit or L/C Draft being hereinafter referred to
as a “Reimbursement Obligation” with respect to
such Letter of Credit or L/C Draft), each such reimbursement to be made by such
Borrower no later than the Business Day on which the Issuing Bank makes payment
of each such L/C Draft or, if such Borrower shall have received notice of a
Reimbursement Obligation later than 9:00 a.m. (Chicago time) on any Business Day
or on a day which is not a Business Day, no later than 9:00 a.m. (Chicago time)
on the immediately following Business Day or, in the case of any other draw on a
Letter of Credit, the date specified in the demand of the Issuing Bank. If any
Borrower at any time fails to repay a Reimbursement Obligation pursuant to this
Section 3.7, such Borrower shall be deemed to have elected to borrow
Revolving Loans from the Lenders, as of the date of the advance giving rise to
the Reimbursement Obligation, in an aggregate amount equal to (and in the same
Agreed Currency as) the unpaid Reimbursement Obligation. Such Revolving Loans
shall be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to the making of Revolving Loans.
Revolving Loans made pursuant to this Section 3.7, if made in Dollars,
shall initially be Floating Rate Advances and thereafter may be continued as
Floating Rate Advances or converted into Eurocurrency Rate Advances in the
manner provided in Section 2.9 and subject to the other conditions and
limitations therein set forth and set forth in Article II and in the
definition of Interest Period. Revolving Loans made pursuant to this Section
3.7, if made in an Agreed Currency other than Dollars, shall initially be
Eurocurrency Rate Advances having an Interest Period selected by the
Administrative Agent and thereafter shall be subject to Section 2.9 and
the other conditions and limitations therein set forth and set forth in
Article II and in the definition of Interest Period. If, for any reason,
the Company fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance plus two percent
(2.0%) per annum. |
| |
3.8. |
Letter of Credit Fees. The Company agrees to pay: |
| |
(A) |
quarterly on each Payment Date, in arrears, to the Administrative Agent for the
ratable benefit of the Lenders a letter of credit fee at a rate per annum equal
to the Applicable L/C Fee Percentage on the average daily outstanding Dollar
Amount available for drawing under each standby Letter of Credit during the
calendar quarter ending on such Payment Date; |
| |
(B) |
to the Issuing Bank with respect to each standby Letter of Credit, a fronting
fee in an amount (and payable at such times) as shall be agreed upon between the
Company and the Issuing Bank with respect to such Letter of Credit; and |
| |
(C) |
to the Issuing Bank, all customary fees and other issuance, amendment,
cancellation, document examination, negotiation, transfer and presentment
expenses and related charges in connection with the issuance, amendment,
cancellation, presentation of L/C Drafts, negotiation, transfer and the like
customarily charged by the Issuing Bank with respect to standby or commercial
Letters of Credit, as applicable, payable at the time of invoice of such
amounts. |
| |
3.9. |
Issuing Bank Reporting Requirements. In addition to the notices required
by Section 3.5(B), the Issuing Bank shall provide to the Administrative
Agent, no later than the tenth (10th) Business Day following the last day of
each month, and otherwise upon the Administrative Agent’s request,
schedules, in form and substance reasonably satisfactory to the Administrative
Agent, showing the date of issue, account party, Agreed Currency and amount in
such Agreed Currency, expiration date and the reference number of each Letter of
Credit outstanding at any time during such month and the aggregate amount
payable by the Company during such month. In addition, upon the request of the
Administrative Agent, the Issuing Bank shall furnish to the Administrative Agent
copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
will provide to such Lender information concerning such Letters of Credit. |
| |
3.10. |
Indemnification; Exoneration. |
| |
(A) |
In addition to amounts payable as elsewhere provided in this Article III,
each Borrower hereby agrees to protect, indemnify, pay and save harmless the
Administrative Agent, the Issuing Bank and each Lender from and against any and
all liabilities and costs which the Administrative Agent, the Issuing Bank or
such Lender may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit other than, in the case of the Issuing
Bank, to the extent resulting from its gross negligence or willful misconduct,
or (ii) the failure of the Issuing Bank to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Authority (all such acts or
omissions herein called “Governmental Acts”). |
| |
(B) |
As among the Borrowers, the Lenders, the Administrative Agent and the Issuing
Bank, the Borrowers assume all risks of the acts and omissions of, or misuse of
such Letter of Credit by, the beneficiary of any Letter of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by any Borrower at the time of request for any Letter of Credit,
neither the Administrative Agent, the Issuing Bank nor any Lender shall be
responsible (in the absence of gross negligence or willful misconduct in
connection therewith): (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of a Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for failure
of the beneficiary of a Letter of Credit to comply duly with conditions required
in order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, facsimile, electronic transmission or otherwise; (v)
for errors in interpretation of technical trade terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Bank and
the Lenders, including, without limitation, any Governmental Acts. None of the
above shall affect, impair, or prevent the vesting of the Issuing Bank’s
rights or powers under this Section 3.10. |
| |
(C) |
In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by Issuing Bank under or in
connection with the Letters of Credit or any related certificates shall not, in
the absence of gross negligence or willful misconduct, put the Issuing Bank, the
Administrative Agent or any Lender under any resulting liability to any Borrower
or relieve any Borrower of any of its obligations hereunder to any such Person. |
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(D) |
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers contained in this
Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement. |
| |
3.11. |
Collateral Account. |
| |
(A) |
Each Borrower agrees that the Company will, on behalf of itself and each
Subsidiary Borrower, upon the request of the Administrative Agent or the
Required Lenders and until the final expiration date of any Letter of Credit and
thereafter as long as any amount is payable to the Issuing Bank or the Lenders
in respect of any Letter of Credit, maintain one or more special collateral
accounts pursuant to arrangements satisfactory to the Administrative Agent (all
such accounts, collectively, the “L/C Collateral
Account”) at the Administrative Agent’s office at the
address specified pursuant to Article XIV, in the name of the Company but
under the sole dominion and control of the Administrative Agent, for the benefit
of the Lenders, and in which no Borrower shall have any interest other than as
set forth in Section 9.1. Each Borrower hereby pledges, assigns and
grants to the Administrative Agent, on behalf of and for the ratable benefit of
the Lenders and the Issuing Bank, a security interest in all of such
Borrower’s right, title and interest in and to all funds which may from
time to time be on deposit in the L/C Collateral Account to secure the prompt
and complete payment and performance of the Obligations. The Administrative
Agent will invest any funds on deposit from time to time in the L/C Collateral
Account in certificates of deposit of Bank One having a maturity not exceeding
30 days. Nothing in this Section 3.11(A) shall either obligate the
Administrative Agent to require any Borrower to deposit any funds in the L/C
Collateral Account or limit the right of the Administrative Agent to release any
funds held in the L/C Collateral Account in each case other than as required by
Section 2.4(B) or 9.1 or this Section 3.11. |
| |
(B) |
The Administrative Agent may at any time or from time to time after any funds
are deposited in the L/C Collateral Account (whether pursuant to Section
2.4(B) or 9.1 or any other provision of this Agreement or any other
Loan Document) and after the occurrence and during the continuance of a Default,
apply such funds to the payment of the Obligations and any other amounts as
shall from time to time have become due and payable by the Borrowers to the
Administrative Agent, the Lenders or the Issuing Bank under the Loan Documents. |
| |
(C) |
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Revolving Loan Commitment has been terminated, any funds remaining in
the L/C Collateral Account shall be returned by the Administrative Agent to the
Borrowers or paid to whomever may be legally entitled thereto at such time. |
| |
3.12. |
Rights as a Lender. In its capacity as a Lender, the Issuing Bank shall
have the same rights and obligations as any other Lender. |
ARTICLE IV: CHANGE IN
CIRCUMSTANCES
| |
4.1. |
Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date the relevant Lender became a party to this
Agreement and having general applicability to all banks within the jurisdiction
in which such Lender operates (excluding, for the avoidance of doubt, the effect
of and phasing in of capital requirements or other regulations or guidelines
passed prior to the date of this Agreement), or any interpretation or
application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith, |
| |
(A) |
subjects any Lender or any applicable Lending Installation to any tax, duty,
charge or withholding on or from payments due from any Borrower (excluding
taxation of the overall net income of any Lender or taxation of a similar basis,
which are governed by Section 2.14(E), and excluding any other taxes for
which such Lender has been reimbursed by the Borrowers), or changes the basis of
taxation of payments to any Lender in respect of its Revolving Loan Commitment,
Loans, its L/C Interests, the Letters of Credit or other amounts due it
hereunder, or |
| |
(B) |
imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender or any applicable
Lending Installation (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency Rate Loans) with
respect to its Revolving Loan Commitment, Loans, L/C Interests or the Letters of
Credit, or |
| |
(C) |
imposes any other condition the result of which is to increase the cost to any
Lender or any applicable Lending Installation of making, funding or maintaining
its Revolving Loan Commitment, the Loans, the L/C Interests or the Letters of
Credit or reduces any amount receivable by any Lender or any applicable Lending
Installation in connection with Loans or Letters of Credit, or requires any
Lender or any applicable Lending Installation to make any payment calculated by
reference to the amount of its Revolving Loan Commitment, Loans or the L/C
Interests held or interest received by it or by reference to the Letters of
Credit, by an amount deemed material by such Lender; |
| |
|
and the result of any of the
foregoing is to increase the cost to that Lender of making, renewing or maintaining its
Revolving Loan Commitment, Loans, L/C Interests or Letters of Credit, or to reduce any
amount received under this Agreement, then, within fifteen (15) days after receipt by the
Company of written demand by such Lender pursuant to Section 4.5, the Company shall
pay such Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and maintaining
its Loans, L/C Interests, Letters of Credit and its Revolving Loan Commitment. |
| |
4.2. |
Changes in Capital Adequacy Regulations. If a Lender determines (i) the
amount of capital required to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is
increased as a result of a “Change” (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within fifteen (15) days
after receipt by the Company of written demand by such Lender pursuant to
Section 4.5, the Company shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans, its L/C Interests, the Letters of Credit or its obligation
to make Loans hereunder (after taking into account such Lender’s policies
as to capital adequacy). “Change” means (i) any
change after the date the relevant Lender became a party to this Agreement in
the “Risk-Based Capital Guidelines” (as defined below) excluding, for
the avoidance of doubt, the effect of any phasing in of such Risk-Based Capital
Guidelines or any other capital requirements passed prior to the date hereof or
(ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date the relevant
Lender became a party to this Agreement and having general applicability to all
banks and financial institutions within the jurisdiction in which such Lender
operates which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in
effect in the United States on the date the relevant Lender became a party to
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled “International Convergence of Capital
Measurements and Capital Standards,” including transition rules, and any
amendments to such regulations adopted prior to the date the relevant Lender
became a party to this Agreement. |
| |
4.3. |
Availability of Types of Advances. If (i) any Lender determines that
maintenance of its Eurocurrency Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law or (ii) the Required Lenders determine that (x) deposits
of a type, currency or maturity appropriate to match fund Eurocurrency Rate
Loans are not available or (y) the interest rate applicable to Eurocurrency Rate
Loans does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and require any Advances of the affected Type to be
repaid or converted into another Type at the end of the Interest Period for the
affected Loans. |
| |
4.4. |
Funding Indemnification. If any payment of principal on a Eurocurrency
Rate Loan occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Eurocurrency Rate Loan is not made or continued, or a Floating Rate Advance is
not converted into a Eurocurrency Rate Advance, in any such case, on the date
specified by any Borrower for any reason other than default by the Lenders, or a
Eurocurrency Rate Advance is not prepaid on the date specified by the Company or
any other Borrower for any reason, the Company shall indemnify each Lender for
any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Eurocurrency Rate Loan. |
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4.5. |
Lender Statements; Survival of Indemnity. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurocurrency Rate Loans to reduce any liability of the Borrowers to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a
Type of Advance under Section 4.3, so long as such designation is not
materially disadvantageous, in the judgment of the Lender, to such Lender. Any
demand for compensation pursuant to Section 2.14(E) or this
Article IV shall be in writing and shall state the amount due, if any,
under Section 2.14(E), 4.1, 4.2 or 4.4 and shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Eurocurrency Rate Loan shall be calculated as though each
Lender funded its Eurocurrency Rate Loan through the purchase of a deposit of
the type, currency and maturity corresponding to the deposit used as a reference
in determining the Eurocurrency Rate applicable to such Loan, whether in fact
that is the case or not. The obligations of the Borrowers under Sections
2.14(E), 4.1, 4.2 or 4.4 shall survive payment of the
Obligations and termination of this Agreement. |
ARTICLE V: CONDITIONS
PRECEDENT
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5.1. |
Conditions to Closing, Initial Advances and Letters of Credit. This
Agreement shall not become effective and the Lenders shall not be required to
make the initial Loans or issue any Letters of Credit (including the deemed
issuance of the Transitional Letters of Credit) unless the Company has furnished
to the Administrative Agent each of the following, with sufficient copies for
the Lenders, all in form and substance satisfactory to the Administrative Agent
and the Lenders: |
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(A) |
Copies of the Certificate of Incorporation (or other comparable constituent
document) of each Initial Loan Party together with all amendments thereto and a
certificate of good standing, both certified by the appropriate governmental
officer in its jurisdiction of organization, as well as any other information
required by Section 326 of the USA Patriot Act or necessary for the Agents or
any Lender to verify the identity of each Initial Loan Party as required by
Section 326 of the USA Patriot Act; |
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(B) |
Copies, certified by the Secretary or Assistant Secretary of each Initial Loan
Party of its By-Laws (or other comparable governing document) and of its Board
of Directors’ resolutions (and required resolutions of other bodies)
authorizing the execution of the Loan Documents; |
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(C) |
An incumbency certificate, executed by the Secretary or Assistant Secretary of
each Initial Loan Party which shall identify by name and title and bear the
signatures (or facsimiles thereof) of the officers of such Initial Loan Party
authorized to sign the Loan Documents (and, in the case of the Company, to make
borrowings hereunder), upon which certificate the Lenders shall be entitled to
rely until informed of any change in writing by the applicable Loan Party; |
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(D) |
A certificate, in form and substance satisfactory to the Administrative Agent,
signed by a Designated Financial Officer of the Company, stating that on the
Closing Date (both before and after giving effect to the Loans made and/or
Letters of Credit issued or deemed issued thereon) all the representations in
this Agreement are true and correct in all material respects (unless such
representation and warranty is made as of a specific date, in which case, such
representation and warranty shall be true and correct in all material respects
as of such date), the Company is, and the Company and its Subsidiaries as a
whole are, Solvent and no Default or Unmatured Default has occurred and is
continuing; |
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(E) |
(i) Satisfactory audited financial statements of the Company and its
consolidated Subsidiaries with respect to the fiscal years of the Company ending
on September 30, 2002, and September 30, 2003, (ii) satisfactory unaudited
financial statements of the Company and its consolidated Subsidiaries with
respect to the fiscal quarters ending on December 31, 2003, and March 31, 2004,
and (iii) a compliance certificate (substantially in the form of Exhibit
G hereto and in such detail as is requested by the Administrative Agent)
signed by a Designated Financial Officer and demonstrating compliance with the
provisions of Sections 7.3 and 7.4 as of the end of the fiscal
quarter ending on March 31, 2004; |
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(F) |
Evidence satisfactory to the Administrative Agent that the Prior Credit
Agreements have terminated and that all obligations, indebtedness and
liabilities outstanding under the Prior Credit Agreements have been
repaid in full (it being understood and agreed that the Transitional Letters of
Credit shall be evidenced hereby in accordance with Section 3.2), or the
Company has arranged for such termination and repayment from the proceeds of the
initial Loans hereunder (in either case, as documented in a payoff letter in
form and substance reasonably satisfactory to the Administrative Agent); |
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(G) |
Written money transfer instructions reasonably requested by the Administrative
Agent, addressed to the Administrative Agent and signed by an Authorized
Officer; |
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(H) |
Evidence satisfactory to the Administrative Agent that the Company has paid to
the Administrative Agent, the Syndication Agents and the Arrangers the fees
agreed to in each of the fee letters described in Section 2.14(C)(iii); |
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(I) |
The Administrative Agent shall have determined that (i) there is an absence of
any material adverse change or disruption in primary or secondary loan
syndication markets, financial markets or in capital markets generally that
would likely impair syndication of the Loans hereunder and (ii) each Borrower
has fully cooperated with the Administrative Agent’s syndication efforts
including, without limitation, by providing the Administrative Agent with
information regarding such Borrower’s operations and prospects and such
other information as the Administrative Agent deems necessary to successfully
syndicate the Loans hereunder; |
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(J) |
The written opinions of (i) the Initial Loan Parties’ U.S. counsel in the
forms of the opinions attached hereto as Exhibit E-1 and (ii) the Initial
Subsidiary Borrower’s Ireland counsel in the forms of the opinions attached
hereto as Exhibit E-2, in each case addressed to the Administrative Agent
and the Lenders, in form and substance acceptable to the Administrative Agent
and its counsel; and |
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(K) |
Such other documents as the Administrative Agent or any Lender or its counsel
may have reasonably requested, including, without limitation, the Subsidiary
Guaranty and each other instrument, document or agreement reflected on the List
of Closing Documents attached as Exhibit F to this Agreement. |
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Without in any way limiting the
foregoing, this Agreement shall not become effective unless and until it has been executed
by the Company, the Administrative Agent and the Lenders, and each such party has notified
the Administrative Agent by facsimile or electronic transmission that it has taken such
action. |
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5.2. |
Each Advance and Letter of Credit. The Lenders shall not be required to
make, convert or continue any Advance or issue any Letter of Credit, unless on
the applicable Credit Extension Date, both before and after giving effect to
such Advance, conversion, continuation or Letter of Credit: |
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(A) |
There exists no Default or Unmatured Default; |
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(B) |
The representations and warranties contained in Article VI are true and
correct in all material respects as of such Credit Extension Date (unless such
representation and warranty is made as of a specific date, in which case, such
representation and warranty shall be true and correct in all material respects
as of such date); provided, however, that accuracy of the
representation and warranty set forth in Section 6.5 as of any Credit
Extension Date shall not constitute a condition precedent pursuant to this
Section 5.2(B) if on such Credit Extension Date the Company has Single
Investment Grade Status. |
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(C) |
(i) The Dollar Amount of the Revolving Credit Obligations does not, and after
making such proposed Advance or issuing such Letter of Credit would not, exceed
the Aggregate Revolving Loan Commitment and (ii) the Dollar Amount of the
Revolving Credit Obligations denominated in Agreed Currencies other than Dollars
does not, and after the making of the proposed Advance or issuing such Letter of
Credit would not, exceed the Foreign Currency Sublimit. |
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|
Each Borrowing/Election Notice with
respect to each such Advance and the letter of credit application with respect to each
Letter of Credit shall constitute a representation and warranty by the Company that the
conditions contained in Sections 5.2(A), (B) and (C) have been
satisfied. |
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5.3. |
Initial Advance to Each New Subsidiary Borrower. Without in any way
limiting the applicability of the foregoing Sections 5.1 and 5.2
or the conditions set forth in Section 2.23, the Lenders shall not be
required to make any Advance hereunder, or issue any Letter of Credit, in each
case, to or with respect to any Subsidiary Borrower unless the Company or such
Subsidiary Borrower has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders: |
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(A) |
The Assumption Letter executed and delivered by such Subsidiary Borrower and
containing the written consent of the Company thereon, as contemplated by
Section 2.23; |
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(B) |
Copies of the Certificate of Incorporation (or other comparable constituent
document) of such Subsidiary Borrower, together with all amendments thereto and
a certificate of good standing (or equivalent thereof, to the extent obtainable
in any jurisdiction outside the United States), both certified by the
appropriate governmental officer in its jurisdiction of organization, as well as
any other information required by Section 326 of the USA Patriot Act or
necessary for the Agents or any Lender to verify the identity of such Subsidiary
Borrower as required by Section 326 of the USA Patriot Act; |
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(C) |
Copies, certified by the Secretary or Assistant Secretary of such Subsidiary
Borrower, of its By-Laws (or other comparable governing document) and of its
Board of Directors’ (or comparable governing body’s) resolutions (and
required resolutions of other bodies) authorizing the execution of the Loan
Documents to which it is a party; |
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(D) |
An incumbency certificate, executed by the Secretary or Assistant Secretary of
such Subsidiary Borrower, which shall identify by name and title and bear the
signatures (or facsimiles thereof) of the officers thereof authorized to sign
the Loan Documents, upon which certificate the Lenders shall be entitled to rely
until informed of any change in writing by such Subsidiary Borrower; |
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(E) |
An opinion of counsel to such Subsidiary Borrower with respect to the laws of
its jurisdiction of organization, addressed to the Administrative Agent and the
Lenders, substantially in the form attached as part of Exhibit E-1 or
E-2 hereto, as applicable, but with such assumptions, qualifications and
deviations therefrom as the Administrative Agent shall approve and otherwise in
form and substance acceptable to the Administrative Agent and its counsel; |
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(F) |
Promissory notes payable to each of the Lenders requesting promissory notes
pursuant to Section 2.12(D) hereof; and |
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(G) |
Such other instruments, documents or agreements as the Administrative Agent may
reasonably request (including, without limitation, an amendment to this
Agreement) in connection with the addition of such Subsidiary Borrower, all in
form and substance reasonably satisfactory to the Administrative Agent. |
ARTICLE VI:
REPRESENTATIONS AND WARRANTIES
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In
order to induce the Administrative Agent and the Lenders to enter into this Agreement and
to make the Loans and the other financial accommodations to the Borrowers and to issue the
Letters of Credit described herein, the Company represents and warrants as follows with
respect to itself and its Subsidiaries (and each Subsidiary Borrower shall also be deemed
to make each representation and warranty to the extent it relates to such Subsidiary
Borrower and its Subsidiaries) to each Lender and the Administrative Agent as of the
Closing Date, giving effect to the consummation of the transactions contemplated by the
Loan Documents on the Closing Date, and thereafter on each date as required by Section
5.2 (it being understood and agreed that, notwithstanding anything to the contrary
contained in the Loan Documents, the representation and warranty set forth in Section
6.5 shall not be made at any time that the Company has Single Investment Grade
Status): |
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6.1. |
Corporate Existence and Standing. Each of the Company and its
Subsidiaries is a corporation, partnership, limited liability company or other
organization duly incorporated or organized, validly existing and in good
standing (to the extent such concept is applicable to such entity) under the
laws of its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted and where the failure to be in good standing or authorized to conduct
business would have a Material Adverse Effect. |
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6.2. |
Authorization, Validity and Enforceability. Each Borrower and each
Subsidiary Guarantor has the corporate or other power and authority and legal
right to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by each Borrower
and each Subsidiary Guarantor of the Loan Documents to which it is a party and
the performance of its obligations thereunder have been duly authorized by
proper corporate, partnership or limited liability company proceedings (or
analogous acts in the case of any Foreign Subsidiary), and the Loan Documents to
which it is a party constitute legal, valid and binding obligations of such
Person enforceable against such Person in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally. |
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6.3. |
No Conflict; Consent. Neither the execution and delivery by the Borrowers
and the Subsidiary Guarantors of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any of its Subsidiaries or the
Company’s or any Subsidiary’s articles of incorporation or by-laws or
comparable constitutive documents or the provisions of any indenture, instrument
or agreement to which the Company or any of its Subsidiaries is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien (other than any Lien permitted by Section 7.3(F)) in, of or on the
Property of the Company or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement, except for any such violation, conflict or
default as would not reasonably be expected to have a Material Adverse Effect.
No order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any Governmental
Authority, or any other third party, is required to authorize, or is required in
connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents. |
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6.4. |
Financial Statements. The September 30, 2003 audited annual consolidated
financial statements of the Company and its Subsidiaries heretofore delivered to
the Lenders were prepared in accordance with generally accepted accounting
principles in effect in the United States of America on the date such statements
were prepared and fairly present the consolidated financial condition and
operations of the Company and its Subsidiaries at such date and the consolidated
results of their operations for the period then ended. The historical financial
information regarding the Company and its Subsidiaries included in the Bank Book
heretofore delivered to the Lenders fairly presents the consolidated financial
condition of the Company and its Subsidiaries at September 30, 2001, September
30, 2002, September 30, 2003, and March 31, 2004 in accordance with generally
accepted accounting principles as in effect in the United States of America on
such dates. The projected financial information regarding the Company and its
Subsidiaries contained in the Bank Book is based on estimates and assumptions
considered reasonable by the Company’s management and the best information
available to the Company’s management at the time such projected financial
information was provided, and uses information consistent with the plans of the
Company. |
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6.5. |
Material Adverse Change. Since September 30, 2003, there has been no
change in the business, condition (financial or otherwise), operations,
performance or Properties of the Company and its Subsidiaries, as reflected in
the audited annual consolidated financial statements of the Company and its
Subsidiaries for the fiscal year ended on such date described in Section
6.4, which has had or could reasonably be expected to have a Material
Adverse Effect. |
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6.6. |
Taxes. The Company and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes shown as due pursuant to said returns or pursuant to any
assessment received by the Company or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and such failures to file or pay, if any, as would not reasonably be expected to
have a Material Adverse Effect. No tax liens have been filed and no claims are
being asserted with respect to any such taxes, other than as permitted by
Section 7.3(F)(ii). The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of any taxes or other governmental
charges are adequate. |
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6.7. |
Litigation and Contingent Obligations. Except as set forth on Schedule
6.7 hereto, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending, or, to the knowledge of any of their officers,
threatened against or affecting the Company or any of its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of the Loans or Advances. Other than any
liability incident to such litigation, arbitration or proceedings, the Company
and its Subsidiaries have no material Contingent Obligations not provided for or
disclosed in the financial statements referred to in Section 6.4. |
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6.8. |
Subsidiaries. Schedule 6.8 hereto contains an accurate list of all
Subsidiaries (including all Material Domestic Subsidiaries) of the Company
existing on the Closing Date, setting forth their respective jurisdictions of
incorporation and the percentage of their respective Capital Stock owned by the
Company or other Subsidiaries. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable. |
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6.9. |
ERISA; Foreign Plans; Multiemployer Plans. Each Plan and each Foreign
Plan complies with all applicable requirements of law and regulations and the
provisions of the Plan documents except for a failure to comply which would not
result in a material liability. No Benefit Plan has incurred any material
accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and
412(a) of the Code). Neither the Company nor any member of the Controlled Group
has failed to make an installment or any other payment required under Section
412(m) of the Code and of a material amount on or before the due date for such
installment or payment. Neither the Company nor any member of the Controlled
Group has taken or failed to take any action which would constitute or result in
a Termination Event which could reasonably be expected to subject the Company or
a Controlled Group member to a material liability. Neither the Company nor any
member of the Controlled Group has incurred any material liability to the PBGC
which remains outstanding other than for the payment of premiums. For purposes
of this Section 6.9, “material” means any amount, noncompliance
or other basis for liability which, individually or in the aggregate with each
other basis for liability under this Section 6.9, could reasonably be
expected to subject the Company to liability having a Material Adverse Effect. |
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6.10. |
Accuracy of Information. No written information, exhibit or report
furnished by the Company or any of its Subsidiaries to the Agents or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents, contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading in light of the circumstances in which they were made;
provided, that no representation or warranty is made with respect to the
projected financial information regarding the Company and its Subsidiaries
contained in the Bank Book other than the representation and warranty stated in
the last sentence of Section 6.4. |
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6.11. |
Regulation U. Neither the Company nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate of, buying or
carrying Margin Stock, and after applying the proceeds of each Advance, Margin
Stock constitutes less than 25% of the assets of the Company and its
Subsidiaries which are subject to any limitation on sale, pledge or other
restriction hereunder. |
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6.12. |
Material Agreements. Neither the Company nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in (a) any agreement to which it is a party, which default could
reasonably be expected have a Material Adverse Effect or (b) any agreement or
instrument evidencing or governing Material Indebtedness. |
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6.13. |
Compliance With Laws. The Company and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property if failure to comply therewith could reasonably be
expected to have a Material Adverse Effect. |
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6.14. |
Plan Assets; Prohibited Transactions. None of the Borrowers is an entity
deemed to hold “plan assets” within the meaning of 29 C.F.R. §
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code). The Company and its Subsidiaries have not engaged in any
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code which could reasonably be expected to result in liability,
individually or in the aggregate, having a Material Adverse Effect; and neither
the execution of this Agreement nor the making of Loans (assuming that the
Lenders do not fund any of the Loans with any “plan assets” as defined
under ERISA) hereunder give rise to a non-exempt prohibited transaction within
the meaning of Section 406 of ERISA or Section 4975 of the Code. |
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6.15. |
Environmental Matters. In the ordinary course of its business, the
Company considers the effect of Environmental Laws on the business of the
Company and its Subsidiaries, in the course of which it identifies and evaluates
potential risks and liabilities accruing to the Company due to Environmental
Laws. On the basis of this consideration, the Company has concluded that
Environmental Laws cannot reasonably be expected to result in liability,
individually or in the aggregate, having a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to result in
liability, individually or in the aggregate, having a Material Adverse Effect. |
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6.16. |
Investment Company Act. Neither the Company nor any Subsidiary is an
“investment company” or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act
of 1940, as amended. |
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6.17. |
Public Utility Holding Company Act. Neither the Company nor any
Subsidiary 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. |
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6.18. |
Ownership of Properties. The Company and its Subsidiaries have good
title, free of all Liens other than those permitted by Section 7.3(F), to
all of the assets reflected in the Company’s most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Company and the Subsidiaries, except assets sold or otherwise transferred as
permitted under Section 7.3(C). |
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6.19. |
Insurance. The Company and its Subsidiaries maintain, with financially
sound and reputable insurance companies, insurance in such amounts, subject to
deductibles and self-insurance retentions, and covering such properties and
risks, as is consistent with sound business practices. |
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6.20. |
No Default or Unmatured Default. No Default or Unmatured Default has
occurred and is continuing. |
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6.21. |
Solvency. After giving effect to (a) the Loans to be made (or, if
applicable, Letters of Credit to be issued or deemed issued) on the Closing Date
or such other date as Loans requested hereunder are made (or Letters of Credit
are issued), (b) the other transactions contemplated by this Agreement and the
other Loan Documents and (c) the payment and accrual of all transaction costs
with respect to the foregoing, the Company is, and the Company and its
Subsidiaries taken as a whole are, Solvent. |
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6.22. |
Benefits. Each of the Company and its Subsidiaries will benefit from the
financing arrangement established by this Agreement. The Administrative Agent
and the Lenders have stated and acknowledge that, but for the agreement by each
of the Subsidiary Guarantors to execute and deliver the Subsidiary Guaranty, any
Subsidiary Borrower to assume joint and several liability for the Obligations to
the extent provided in Section 1.4 or any other Subsidiary to execute and
deliver any Loan Document to which it is a party, the Administrative Agent and
the Lenders would not have made available the credit facilities established
hereby on the terms set forth herein. |
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6.23. |
Additional Representations and Warranties of Foreign Subsidiary
Borrowers. In addition to the foregoing, each Foreign Subsidiary Borrower
further represents and warrants to the Administrative Agent and the Lenders as
follows: |
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(A) |
Filing. To ensure the enforceability or admissibility in evidence of this
Agreement and each other Loan Document to which such Foreign Subsidiary Borrower
is a party in its jurisdiction of organization (“Home
Country”), it is not necessary that this Agreement or any
other Loan Document to which such Foreign Subsidiary Borrower is a party or any
other document be filed or recorded with any court or other authority in its
Home Country or that any stamp or similar tax be paid in respect of this
Agreement or any other Loan Document of such Foreign Subsidiary Borrower. The
qualification by any Lender or the Administrative Agent for admission to do
business under the laws of such Foreign Subsidiary Borrower’s Home Country
does not constitute a condition to, and the failure to so qualify does not
affect, the exercise by any Lender or the Administrative Agent of any right,
privilege, or remedy afforded to any Lender or the Administrative Agent in
connection with the Loan Documents to which such Foreign Subsidiary Borrower is
a party or the enforcement of any such right, privilege, or remedy against such
Foreign Subsidiary Borrower. The performance by any Lender or the Administrative
Agent of any action required or permitted under the Loan Documents will not (i)
violate any law or regulation of such Foreign Subsidiary Borrower’s Home
Country or any political subdivision thereof, (ii) result in any tax or other
monetary liability to such party pursuant to the laws of such Foreign Subsidiary
Borrower’s Home Country or political subdivision or taxing authority
thereof (provided, that, should any such action result in any such tax or
other monetary liability to the Lender or the Administrative Agent, such Foreign
Subsidiary Borrower hereby agrees to indemnify such Lender or the Administrative
Agent, as the case may be, against (x) any such tax or other monetary liability
and (y) any increase in any tax or other monetary liability which results from
such action by such Lender or the Administrative Agent and, to the extent such
Foreign Subsidiary Borrower makes such indemnification, the incurrence of such
liability by the Administrative Agent or any Lender will not constitute a
Default) or (iii) violate any rule or regulation of any federation or
organization or similar entity of which the such Foreign Subsidiary
Borrower’s Home Country is a member. |
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(B) |
No Immunity. Neither such Foreign Subsidiary Borrower nor any of its
assets is entitled to immunity from suit, execution, attachment or other legal
process. Such Foreign Subsidiary Borrower’s execution and delivery of the
Loan Documents to which it is a party constitute, and the exercise of its rights
and performance of and compliance with its obligations under such Loan Documents
will constitute, private and commercial acts done and performed for private and
commercial purposes. |
ARTICLE VII: COVENANTS
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The
Company covenants and agrees on behalf of itself and its Subsidiaries (and each Subsidiary
Borrower shall also be deemed to so covenant and agree to the extent such covenant relates
to such Subsidiary Borrower and its Subsidiaries) that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations) and termination of all Letters of Credit,
unless the Required Lenders shall otherwise give prior written consent: |
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7.1. |
Reporting. The Company will maintain, for itself and each Subsidiary, a
system of accounting enabling it to provide, and will furnish to the Lenders: |
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(A) |
Annual Reports. Within one hundred five (105) days after the close of
each of the Company’s fiscal years, annual audited consolidated financial
statements for the Company and its Subsidiaries, including a consolidated
balance sheet as of the end of such period, related statement of consolidated
income, statement of consolidated shareowners’ equity, and statement of
cash flows, all prepared in accordance with Agreement Accounting Principles,
accompanied by an unqualified audit report of independent auditors acceptable to
the Lenders; |
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(B) |
Quarterly Reports. Within fifty-five (55) days after the close of the
first three quarterly periods of each of the Company’s fiscal years,
unaudited consolidated financial statements for the Company and its
Subsidiaries, including a consolidated balance sheet as of the end of such
period, related statement of consolidated income and statement of cash flows,
all prepared in accordance with Agreement Accounting Principles, for the period
from the beginning of such fiscal year to the end of such quarter; |
| |
(C) |
Compliance Certificate. Together with the financial statements required
under Sections 7.1(A) and (B), commencing with the financial
statements delivered for the quarter ending June 30, 2004, a certificate signed
by a Designated Financial Officer in the form of Exhibit G hereto,
setting forth reasonably detailed calculations (which calculations shall be made
in accordance with Agreement Accounting Principles) showing compliance with
Sections 7.2(K), 7.3 and 7.4 (including, without
limitation, a schedule setting forth the Material Domestic Subsidiaries of the
Company as of the end of the applicable period), and stating that no Default or
Unmatured Default exists or existed during the applicable period, or if any
Default or Unmatured Default exists or existed, stating the nature and status
thereof; |
| |
(D) |
ERISA Information. If requested by the Administrative Agent, within 180
days after the close of each fiscal year, (i) a statement of the Unfunded
Liabilities of each Benefit Plan, certified as correct by an actuary enrolled
under ERISA, and (ii) such other financial information regarding the
Company’s Plans as the Administrative Agent may reasonably request,
certified as prepared in accordance with generally accepted actuarial principles
and practices by an actuary enrolled under ERISA, as well as financial
information regarding any Foreign Plans, certified as prepared in accordance
with locally accepted actuarial principles and practices by a locally qualified
actuary; |
| |
(E) |
Termination Event. As soon as possible and in any event within ten days
after the Company knows that any Termination Event has occurred, a statement,
signed by an Authorized Officer of the Company, describing such Termination
Event and the action which the Company proposes to take with respect thereto; |
| |
(F) |
Environmental. As soon as possible and in any event within 30 days after
receipt by the Company, a copy of (i) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the release by the Company, any of its Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the environment and (ii) any
notice alleging any violation of any Environmental Law by the Company or any of
its Subsidiaries, which, in either case, could reasonably be expected to have a
Material Adverse Effect. |
| |
(G) |
Shareholder Information. Promptly upon the furnishing thereof to the
shareholders of the Company, copies of all financial statements, reports and
proxy statements so furnished; |
| |
(H) |
Public Filings. Promptly upon the filing thereof, copies of all
registration statements, current reports and annual, quarterly, or other regular
reports which the Company files with the Commission, including, without
limitation, all reports on Form 10-K, 10-Q and 8-K and all certifications and
other filings required by Section 302 and Section 906 of the Xxxxxxxx-Xxxxx Act
of 2002, as amended, and all rules and regulations related thereto; and |
| |
(I) |
Other Information. Such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to time
reasonably request. |
| |
|
Notwithstanding anything to the
contrary, the Company shall be deemed to have complied with the delivery requirements
under clauses (A), (B), (G) and (H) of this Section 7.1
by providing notification (which may be in electronic format) to the Lenders that the
required documents are publicly available through the Company’s web site or other
publicly available electronic medium and providing the hyperlink or appropriate other
locational information for obtaining such information. |
| |
7.2. |
Affirmative Covenants. |
| |
(A) |
Use of Proceeds. The Company will, and will cause each Subsidiary to, use
the proceeds of the Advances for the Company’s general corporate purposes,
including to finance the Borrowers’ and their Subsidiaries’ working
capital needs and for commercial paper backstop, and for Permitted Acquisitions;
provided that: |
| |
(i) |
the Borrowers shall use the proceeds of the Advances in compliance with all
applicable legal and regulatory requirements and any such use shall not result
in a violation of any such requirements, including, without limitation,
Regulations U and X, the Securities Act and the Securities Exchange Act, and the
regulations promulgated thereunder; and |
| |
(ii) |
no portion of the proceeds of any Advance shall be used, directly, or
indirectly, to provide funds for any Acquisition unless, at the time such funds
are so used, the Board of Directors (or persons exercising similar functions) of
the issuer of the securities to be acquired or the owner of the business or
assets to be acquired, as applicable, shall have either (x) approved such
Acquisition and recommended it to the shareholders of such Person or (y) neither
approved nor disapproved such Acquisition nor made any recommendation to the
shareholders of such Person. |
| |
(B) |
Notice of Default. The Company will, and will cause each Subsidiary to,
give notice (not later than five (5) days after an Authorized Officer becomes
aware of such occurrence) in writing to the Administrative Agent and the Lenders
of (i) the occurrence of any Default or Unmatured Default, (ii) the delivery by
any Person of any written notice to the Company or any Subsidiary of, or the
taking of any other action by any Person with respect to, a claimed default or
event or condition of the type referred to in Section 8.1(E) and (iii)
the occurrence of any other development, financial or otherwise (including any
litigation), that could reasonably be expected to have a Material Adverse
Effect. |
| |
(C) |
Corporate Existence. The Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of the Subsidiary Borrowers and each other
Subsidiary in accordance with the respective organizational documents of each
such Person and the rights (charter and statutory) and material franchises of
the Company, each Subsidiary Borrower and each other Subsidiary;
provided, that (except as otherwise provided herein) the Company shall
not be required to preserve any such right or franchise, or the existence of any
Subsidiary (except for the Subsidiary Borrowers and the Subsidiary Guarantors),
if the discontinuance thereof could not reasonably be expected to have a
Material Adverse Effect. |
| |
(D) |
Taxes. The Company will, and will cause each Subsidiary to, pay when due
all taxes, assessments and governmental charges and levies upon it or its
income, profits or property, except (i) those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Agreement Accounting Principles and (ii)
those as to which failure to pay when due could not reasonably be expected to
have a Material Adverse Effect. |
| |
(E) |
Insurance. The Company will, and will cause each Subsidiary to, maintain
with financially sound and reputable insurance companies insurance on all their
Property in such amounts, subject to such deductibles and self-insurance
retentions, and covering such properties and risks as is consistent with sound
business practice, and the Company will furnish to any Lender upon reasonable
request full information as to the insurance carried. |
| |
(F) |
Compliance with Laws. The Company will, and will cause each Subsidiary
to, comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject except those with
which the failure to comply would not reasonably be expected to have a Material
Adverse Effect. |
| |
(G) |
ERISA Compliance. The Company will, and will cause each Subsidiary to,
maintain and operate (i) all Plans to comply with the applicable provisions of
the Code, ERISA, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans and (ii) all Foreign Plans to comply with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents, unless the failure to maintain, operate and comply with the
foregoing, as applicable, could not reasonably be expected to subject the
Company or its Subsidiaries to liability, individually or in the aggregate,
having a Material Adverse Effect. |
| |
(H) |
Environmental Compliance. The Company will, and will cause each
Subsidiary to, comply with all Environmental Laws, except where noncompliance
could not reasonably be expected to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, having a Material
Adverse Effect. |
| |
(I) |
Maintenance of Properties. The Company will, and will cause each
Subsidiary to, do all things reasonably necessary to maintain, preserve, protect
and keep its material Property in good repair, working order and condition in
all material respects (ordinary wear and tear excepted), and make all necessary
and proper repairs, renewals and replacements material to its business so that
its business carried on in connection therewith may be properly conducted at all
times. |
| |
(J) |
Inspection. The Company will, and will cause each Subsidiary to, permit
the Administrative Agent and any or each Lender, by their respective
representatives and agents, to inspect any of the Property, corporate books and
financial records of the Company and each Subsidiary, to examine and make copies
of the books of accounts and other financial records of the Company and each
Subsidiary, and to discuss the affairs, finances and accounts of the Company and
each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
such Lender, as the case may be, may designate. |
| |
(K) |
Guaranty Documentation from Material Domestic Subsidiaries and Other
Subsidiaries. |
| |
(i) |
In addition to causing each Material Domestic Subsidiary as of the Closing Date
to execute and deliver the Subsidiary Guaranty, each as required by Section
5.1 hereof, the Company will cause each Subsidiary that becomes a Material
Domestic Subsidiary after the Closing Date (whether by virtue of the
consummation of a Permitted Acquisition, asset sales, contributions to capital,
additional Investments in such Subsidiary, any corporate reorganization or
otherwise), to execute and deliver to the Administrative Agent, as promptly as
possible, but in any event within thirty (30) days after submission to the
Administrative Agent by the Company of (a) quarterly or annual financial
statements as required by Sections 7.1(A) and 7.1(B) or (b) pro
forma financial statements in connection with any Permitted Acquisition,
whichever is earlier, which financial statements indicate that such Subsidiary
has become a Material Domestic Subsidiary, (x) an executed supplement to become
a Subsidiary Guarantor under the Subsidiary Guaranty in the form of Annex I to
Exhibit H attached hereto (whereupon such Subsidiary shall become a
“Subsidiary Guarantor” under the Subsidiary Guaranty and this
Agreement) and (y) resolutions, officer’s certificates, opinions of counsel
and such other authorizing documentation as the Administrative Agent may
reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent. Following the date upon which the Company shall have
initially achieved Double Investment Grade Status after the Closing Date, (a)
the Administrative Agent shall be authorized to, and shall promptly, execute and
deliver to the Company such documentation as the Company may reasonably request
in order to release each Subsidiary Guarantor (other than any Subsidiary
Guarantor that shall be required to be a Subsidiary Guarantor pursuant to the
succeeding clause (ii)) from the Subsidiary Guaranty and (b) the
provisions of the first sentence of this clause (i) shall thereafter
cease to be in effect. |
| |
(ii) |
In addition to the foregoing, if at any time any Subsidiary of the Company which
is not a Subsidiary Guarantor guarantees any Indebtedness of the Company other
than the Obligations, the Company shall cause such Subsidiary to execute and
deliver to the Administrative Agent, as promptly as possible but in any event
within thirty (30) days after the date upon which such Subsidiary shall have
guaranteed such Indebtedness, (A)(a)(i) if the Subsidiary Guaranty remains in
effect as of such date, an executed supplement to become a Subsidiary Guarantor
under the Subsidiary Guaranty in the form of Annex I to Exhibit H
attached hereto or (ii) if the Subsidiary Guaranty shall no longer be in effect
as of such date, a Guaranty to become a Subsidiary Guarantor thereunder, in a
form reasonably acceptable to the Administrative Agent and substantially similar
to the guaranty pursuant to which such Subsidiary shall have guaranteed such
Indebtedness of the Company and/or (b) in the case of any Foreign Subsidiary,
such other guaranty documentation as may be enforceable under the laws of such
Foreign Subsidiary’s jurisdiction of organization (whereupon such
Subsidiary shall become a “Subsidiary Guarantor”) and (B) resolutions,
officer’s certificates, opinions of counsel and such other authorizing
documentation as the Administrative Agent may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent. Following the
date upon which any such Subsidiary shall cease to be obligated as a guarantor
of any Indebtedness of the Company other than the Obligations, unless such
Subsidiary shall be required to be a Subsidiary Guarantor pursuant to the
foregoing clause (i), the Administrative Agent shall be authorized to,
and shall promptly, execute and deliver to the Company such documentation as the
Company may reasonably request in order to release each Subsidiary Guarantor
from the applicable Guaranty. |
| |
(A) |
Non-Guarantor Subsidiary Indebtedness. The Company will not permit any
Non-Guarantor Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Indebtedness, except for: |
| |
(i) |
Permitted Existing Non-Guarantor Subsidiary Indebtedness and Permitted
Refinancing Indebtedness with respect thereto; |
| |
(ii) |
Obligations of any Foreign Subsidiary Borrowers pursuant to the Loan Documents; |
| |
(iii) |
Indebtedness arising from intercompany loans and advances from the Company or
any Wholly-Owned Subsidiary to any Non-Guarantor Subsidiary; |
| |
(iv) |
Receivables Facility Attributed Indebtedness arising in connection with a
Permitted Receivables Financing or a Foreign Factoring Transaction; |
| |
(v) |
Indebtedness secured by Liens permitted by Section 7.3(F)(xvi); and |
| |
(vi) |
Indebtedness in addition to that referred to elsewhere in this Section
7.3(A) in an aggregate amount not to exceed, at any time, five percent
(5.0%) of the Company’s Consolidated Assets as of the end of the most
recently completed fiscal quarter. |
| |
(B) |
Merger. Without limiting the provisions of Section 7.3(G), the
Company will not, nor will it permit any Subsidiary to, merge or consolidate
with or into any other Person, except that: |
| |
(i) |
Any Subsidiary may merge or consolidate with the Company (provided, that
the Company shall be the surviving corporation), with any Subsidiary Borrower
(provided, that such Subsidiary Borrower shall be the surviving entity)
or with one or more other Subsidiaries (provided, that in the case of any
such merger or consolidation involving any Subsidiary Guarantor, the surviving
entity shall be such Subsidiary Guarantor); and |
| |
(ii) |
The Company may merge or consolidate with any other entity; provided,
that the Company shall be the surviving corporation and that after giving effect
thereto no Default or Unmatured Default shall exist and be continuing. |
| |
(C) |
Sale of Assets. The Company will not, nor will it permit any Subsidiary
to, consummate any Asset Sale after the Closing Date other than an Asset Sale
which (i) is not for less than fair market value (as determined in good faith by
the management or board of directors of the Company or such Subsidiary, as
applicable), (ii) generates proceeds that, in the aggregate with the proceeds of
all such other Asset Sales during the then current fiscal year, do not exceed
twenty-five percent (25%) of the aggregate book value of the Company’s
Consolidated Assets as of the end of the fiscal quarter immediately preceding
the initial Asset Sale consummated after the Closing Date and (iii) generates
proceeds that, in the aggregate with the proceeds of all such other Asset Sales
during the period from the Closing Date to the date of such proposed
transaction, do not exceed forty percent (40%) of the aggregate book value of
the Company’s Consolidated Assets as of the end of the fiscal quarter
immediately preceding the initial Asset Sale consummated after the Closing Date. |
| |
(D) |
Conduct of Business. The Company will not, nor will it permit any
Subsidiary to, engage in any business other than the businesses engaged in by
the Company or such Subsidiaries on the date hereof and any business or
activities which are reasonably similar, related or incidental thereto or
logical extensions thereof. |
| |
(E) |
Investments. The Company will not, nor will it permit any Subsidiary to,
make or suffer to exist any Investments (including, without limitation, loans
and advances to, and other Investments in, Subsidiaries), or commitments
therefor, except: |
| |
(i) |
Existing Investments in Subsidiaries and other Investments in existence on the
Closing Date and described in Schedule 7.3(E), Investments made after the
Closing Date and specifically described in Schedule 7.3(E) and any
renewal or extension of any such Investments that does not increase the amount
of the Investment being renewed or extended as determined as of such date of
renewal or extension; |
| |
(ii) |
Investments by the Company or any Subsidiary in any Wholly-Owned Subsidiary; |
| |
(iii) |
Investments comprised of capital contributions (whether in the form of cash, a
note or other assets) to an SPV or other Subsidiary or otherwise resulting from
transfers of assets permitted hereunder to such SPV or other Subsidiary, in
either case, in connection with a Permitted Receivables Financing; |
| |
(iv) |
Investments constituting Permitted Acquisitions; |
| |
(v) |
Cash Equivalent Investments; |
| |
(vi) |
Investments in trade receivables or received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business; |
| |
(vii) |
Investments consisting of deposit accounts maintained by the Company and its
Subsidiaries in the ordinary course of business in connection with its cash
management system; and |
| |
(viii) |
Investments in addition to those referred to elsewhere in this Section
7.3(E) in an aggregate amount not to exceed, at any time, seven and one-half
percent (7.50%) of the Company’s Consolidated Assets as of the end of the
most recently completed fiscal quarter. |
| |
(F) |
Liens. The Company will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Company or any of its Subsidiaries, except: |
| |
(i) |
Liens on assets of the Company and its Subsidiaries as of the Closing Date
identified as such on Schedule 7.3(F); |
| |
(ii) |
Liens for taxes, assessments or governmental charges or levies on its Property
if (x) the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings, and (y) adequate reserves therefor are being maintained in
accordance with Agreement Accounting Principles; provided,
however, that any such Liens constituting Environmental Liens, Liens in
favor of the IRS or Liens in favor of the PBGC shall not, individually or in the
aggregate, exceed $35,000,000; |
| |
(iii) |
Liens imposed by law, such as carriers’, warehousemen’s and
mechanics’ liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due; |
| |
(iv) |
Liens arising out of pledges or deposits under worker’s compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation; |
| |
(v) |
Utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Company or the Subsidiaries; |
| |
(vi) |
(a) Lessors’ interests under Capitalized Leases, and (b) in the case of
Synthetic Leases otherwise permitted hereunder, Liens in favor or for the
benefit of the lessors and other funding financial institutions parties to such
transactions (or any agent acting on behalf of any of them) on the items of
property subject to such Synthetic Leases and other assets incidental or related
to such property; provided, however, that Synthetic Lease
Obligations owing to the SunTrust Synthetic Lease Creditors under the SunTrust
Synthetic Lease in an aggregate amount not to exceed $36,000,000 at any time may
be secured by Liens in favor or for the benefit of the SunTrust Synthetic Lease
Creditors on any additional assets of the Company and its Subsidiaries; |
| |
(vii) |
Judgment or other similar Liens arising in connection with legal proceedings so
long as (a) the execution or other enforcement thereof is effectively stayed and
the claims secured thereby are being contested in good faith by appropriate
proceedings and the Company or such Subsidiary, as the case may be, has
established appropriate reserves against such claims in accordance with
Agreement Accounting Principles and (b) such Liens do not constitute a Default
pursuant to Section 8.1(I); |
| |
(viii) |
Liens in favor of the Company or any Lien granted by any Subsidiary in favor of
a Wholly-Owned Subsidiary; |
| |
(ix) |
Liens existing on such Property at the time of its acquisition (directly or
indirectly) (other than any such Lien created in contemplation of such
acquisition); provided, that such Liens shall extend only to the Property
so acquired; |
| |
(x) |
Liens on the Property of a Person that is merged with or into the Company or a
Subsidiary or of a Person that becomes a Subsidiary after the Closing Date (in
each case to the extent such merger, Acquisition or Investment is otherwise
permitted by this Agreement); provided, that (a) such Liens existed at
the time such Person was so merged or became a Subsidiary and were not created
in anticipation of any such transaction, (b) any such Lien does not by its terms
cover any additional property or assets acquired after the time such Person was
so merged or became a Subsidiary, and (c) any such Lien does not by its terms
secure any Indebtedness other than Indebtedness existing immediately prior to
the time such Person was so merged or became a Subsidiary; |
| |
(xi) |
Liens resulting from the deposit of funds or evidences of Indebtedness in trust
for the purpose of defeasing Indebtedness of the Company or any Subsidiary; |
| |
(xii) |
Bank setoff rights arising in the ordinary course of business; |
| |
(xiii) |
Deposits or Liens to secure the performance (and not securing any Indebtedness)
of statutory obligations, surety and appeal bonds, performance bonds and other
obligations of like nature incurred in the ordinary course of business; |
| |
(xiv) |
Liens arising under the Loan Documents; |
| |
(xv) |
Liens on Receivables and Related Security arising in connection with a Permitted
Receivables Financing or a Foreign Factoring Transaction; |
| |
(xvi) |
Liens on any specific fixed asset securing Indebtedness incurred or assumed for
the purpose of financing or refinancing all or any part of the cost of acquiring
or constructing such asset; provided, that such Lien (a) extends only to
the asset then being acquired or constructed and (b) attaches to such asset
concurrently with or within six (6) months after the acquisition or completion
or construction thereof; |
| |
(xvii) |
Any extension, renewal or replacement (or successive extension, renewal, or
replacement) in whole or in part, of any Lien referred to in the foregoing
clauses (i) through (xvi) inclusive; provided,
however, that the principal amount of Indebtedness secured thereby shall
not exceed the principal amount of Indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured the
Lien so extended, renewed or replaced (plus improvements on such property); |
| |
(xviii) |
Deposit arrangements and pledges of cash or cash equivalents that secure only
Hedging Obligations otherwise permitted hereunder; |
| |
(xix) |
If repayment of the Obligations shall at any time be secured by all or
substantially all of the Property of the Company and the Material Domestic
Subsidiaries, Liens on assets of any Foreign Subsidiary of the Company located
outside the United States of America securing Indebtedness of such Subsidiary
otherwise permitted hereunder; and |
| |
(xx) |
Liens in addition to those referred to elsewhere in this Section 7.3(F);
provided, that the aggregate outstanding amount of the obligations
secured by such Liens shall not at any time exceed $50,000,000. |
| |
|
In addition, neither the Company nor
any of its Subsidiaries shall be or become a party to any agreement, note, indenture or
other instrument, or take any other action, which would prohibit the creation of, or
require any equal and ratable sharing of, a Lien on any of its properties or other assets
in favor of the Agents, the Issuing Bank, the Swing Line Bank and the Lenders, as
collateral for the Obligations; provided, that (a) any agreement, note, indenture
or other instrument in connection with purchase money Indebtedness (including Capitalized
Leases) and Synthetic Leases (other than the SunTrust Synthetic Lease) permitted hereunder
may prohibit the creation of a Lien in favor thereof on the items of property obtained
with the proceeds of such purchase money Indebtedness or subject to such Synthetic Leases
(or incidental or related to such Synthetic Leases), (b) (i) from the Closing Date until
the date that is ninety (90) days thereafter, the SunTrust Synthetic Lease Documents may
prohibit the creation of a Lien in favor thereof on any properties or assets of the
Company and its Subsidiaries and (ii) from and after such ninetieth (90th) day,
the SunTrust Synthetic Lease Documents may prohibit the creation of a Lien in favor
thereof solely on the items of property subject to the SunTrust Synthetic Lease or
incidental or related thereto; provided, however, that nothing herein shall
restrict the parties to the SunTrust Synthetic Lease Documents from amending the SunTrust
Synthetic Lease Documents in a manner consistent with the immediately preceding clause
(b)(ii) at any time prior to such ninetieth (90th) day, (c) the documents
evidencing a Permitted Receivables Financing or a Foreign Factoring Transaction may
prohibit the creation of a Lien with respect to all of the assets of the related SPV, if
any, and with respect to the Receivables and Related Security subject to such transaction
in favor thereof as collateral for the Obligations and (d) each Senior Note Indenture may
prohibit the creation of a Lien on certain fixed assets, equity interests and indebtedness
of the Company and its “Restricted Subsidiaries” (as defined in the Senior Note
Indentures) unless the holders of the notes issued pursuant to such Senior Note Indenture
shall be provided with an equal and ratable Lien on such assets, but solely to the extent
such prohibition is provided for in such Senior Note Indenture as in effect on the Closing
Date. |
| |
(G) |
Permitted Acquisitions. The Company will not, nor will it permit any
Subsidiary to, make any Acquisitions, other than Acquisitions meeting the
following requirements or otherwise approved by the Required Lenders (each such
Acquisition constituting a “Permitted
Acquisition”): |
| |
(i) |
no Default or Unmatured Default shall have occurred and be continuing or would
result from such Acquisition or the incurrence of any Indebtedness in connection
therewith (including, without limitation, pursuant to Section 7.2(K)); |
| |
(ii) |
each representation and warranty contained in Article VI shall be true
and correct at the time of such Acquisition and after giving effect thereto;
provided, that accuracy of the representation and warranty set forth in
Section 6.5 shall not constitute a requirement under this Section
7.2(G)(ii) with respect to any Acquisition if at the time of such
Acquisition the Company has Single Investment Grade Status; and |
| |
(iii) |
not less than five (5) Business Days prior to each such Acquisition, the Company
shall deliver to the Administrative Agent and the Lenders a certificate from a
Designated Financial Officer demonstrating to the reasonable satisfaction of the
Administrative Agent that after giving effect to such Acquisition and the
incurrence of any Indebtedness permitted hereunder in connection therewith, on a
pro forma basis acceptable to the Administrative Agent, but
without giving effect to any projected synergies resulting from such
Acquisition, as if the Acquisition and such incurrence of Indebtedness had
occurred on the first day of the twelve-month period ending on the last day of
the Company’s most recently completed fiscal quarter for which financial
statements are publicly available, the Company would have been in compliance
with the covenants set forth in Sections 7.3 and 7.4 and not
otherwise in Default; provided, that notwithstanding the terms of
Section 7.4(A), the Company shall be required to demonstrate that the
Debt Ratio, as of the last day of such twelve-month period (calculated on a
pro forma consolidated basis as described above), does not exceed
(x) if the last day of such twelve-month period is on or before March 31, 2007,
3.00 to 1.00 or (y) otherwise, 2.75 to 1.00; and |
| |
(iv) |
in the case of an Acquisition by the Company or any Subsidiary Borrower of
equity interests of an entity, (A) the acquired entity shall be a Subsidiary of
the Company or (B)(x) the acquired entity shall be merged with and into the
Company or such Subsidiary Borrower substantially concurrently with such
Acquisition, with the Company or such Subsidiary Borrower being the surviving
corporation with voting control following such merger and (y) such merger shall
otherwise comply with Section 7.3(B). |
| |
(H) |
Transactions with Affiliates and Joint Ventures. Except for Permitted
Related Party Transactions and Permitted Strategic Transactions, the Company
will not, nor will it permit any Subsidiary to, enter into any transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate or Joint Venture except
in the ordinary course of business and pursuant to the reasonable requirements
of the Company’s or such Subsidiary’s business and upon fair and
reasonable terms (taken as a whole) not materially less favorable to the Company
or the Company and its Subsidiaries (taken as a whole) than would occur in a
comparable arms-length transaction. |
| |
(I) |
Contingent Obligations. The Company will not, nor will it permit any
Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary) in respect of any Indebtedness except in connection with
Indebtedness which if directly incurred by the Company or such Subsidiary, as
applicable, would not result in a violation of Sections 7.3(A) or
7.4. |
| |
(J) |
Sale and Leaseback. The Company will not, nor will it permit any
Subsidiary to, sell or transfer any property in order to concurrently or
subsequently lease as lessee such or similar property unless (i) the related
sale is permitted under Section 7.3(C), (ii) any related Investment is
permitted under Section 7.3(E) and (iii) no Default or Unmatured Default
shall have occurred and be continuing as of the date of such transaction or
would result therefrom. |
| |
(K) |
Modifications to Other Indebtedness: No More Favorable Terms. |
| |
(i) |
Subordinated Indebtedness. The Company will not, nor will it permit any
Subsidiary to, make any amendment or modification to the indenture, note or
other agreement evidencing or governing any subordinated Indebtedness
(including, without limitation, the Preferred Capital Securities, but excluding
all Intercompany Indebtedness) or Disqualified Stock of the Company or its
Subsidiaries. |
| |
(ii) |
No More Favorable Terms. Without in any way limiting the foregoing
provisions of this Section 7.3(K) or the requirements set forth in
Section 7.2(K)(ii), the Company will not, nor will it permit any
Subsidiary to, enter into or amend, restate, supplement or otherwise modify any
indenture, note or other agreement evidencing or governing any Indebtedness of
the Company having a principal amount (whether or not funded or committed) in
excess of $50,000,000 that (a) contains any covenant binding on the Company or
any Subsidiary or any of their respective Property, (b) contains any event of
default causing, or permitting holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity, or (c) requires the
Company or any Subsidiary to provide a guaranty or collateral pledge that, in
the case of any of the foregoing clauses (a), (b) and (c),
is (x) not substantially provided for in this Agreement or the other Loan
Documents or (y) is more favorable to the holder of such Indebtedness than the
comparable covenant, default, guaranty or collateral pledge set forth in the
Loan Documents (collectively, a “More Favorable
Term”), unless this Agreement and/or any relevant Loan
Document shall be amended or supplemented to provide substantially the same
covenant, default, guaranty or collateral pledge, as applicable, prior to the
effectiveness of the More Favorable Term, except for collateral pledges provided
for in agreements governing Indebtedness secured by Liens permitted under
Sections 7.3(F) other than Section 7.3(F)(xx). |
| |
(L) |
Restricted Payments. The Company will not, nor will it permit any
Subsidiary to, declare or make any Restricted Payment unless no Default or
Unmatured Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom. |
| |
(M) |
Hedging Obligations. The Company will not, nor will it permit any
Subsidiary to, enter into any Hedging Arrangement other than Hedging
Arrangements entered into by the Company or such Subsidiary pursuant to which
the Company or such Subsidiary has hedged its reasonably estimated interest
rate, foreign currency or commodity exposure and which are non-speculative in
nature. |
| |
(N) |
Margin Regulations. The Company will not, nor will it permit any
Subsidiary to, use all or any portion of the proceeds of any credit extended
under this Agreement to purchase or carry Margin Stock. |
| |
(O) |
Restrictive Subsidiary Covenants. The Company will not, nor will it
permit any Subsidiary to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution in respect of its
ownership interests or pay any Indebtedness or other Obligation owed to the
Company or any other Subsidiary, make loans or advances or other Investments in
the Company or any other Subsidiary, or sell, transfer or otherwise convey any
of its property to the Company or any other Subsidiary other than pursuant to
(i) applicable law, (ii) this Agreement or the other Loan Documents, (iii)
restrictions imposed by the holder of a Lien permitted by Section 7.3(F)
and (iv) restrictions imposed in a joint venture agreement on the ability of any
Subsidiary to pay dividends or make any other distribution in respect of its
ownership interests, the removal of which requires the consent of one or more of
the joint venture partners or the joint venture’s board of directors (but
not the consent of any third parties). |
| |
(P) |
Disqualified Stock. The Company will not, and will not permit any
Subsidiary to, issue or permit to remain outstanding any Disqualified Stock. |
| |
7.4. |
Financial Covenants. |
| |
(A) |
Debt Ratio. The Company shall not permit its Debt Ratio, calculated on a
consolidated basis for the Company and its Subsidiaries, to exceed (i) 3.25 to
1.00 on the last day of any fiscal quarter from the Closing Date through and
including the fiscal quarter ending March 31, 2007, and (ii) 3.00 to 1.00 on the
last day of any fiscal quarter thereafter. |
| |
(B) |
Fixed Charge Coverage Ratio. The Company shall not permit its Fixed
Charge Coverage Ratio, calculated on a consolidated basis for the Company and
its Subsidiaries, to be less than 1.50 to 1.00 on the last day of any fiscal
quarter |
ARTICLE VIII: DEFAULTS
| |
8.1. |
Defaults. Each of the following occurrences shall constitute a
“Default” under this Agreement: |
| |
(A) |
Breach of Representation or Warranty. Any written representation or
warranty made or deemed made by or on behalf of the Company or its Subsidiaries
to the Lenders or the Agents in any Loan Document, in connection with any Loan
or Letter of Credit, or in any certificate or information delivered in writing
in connection with any Loan Document shall be false in any material respect on
the date as of which made. |
| |
(B) |
Failure to Make Payments When Due. Nonpayment of principal of any Loan
when due, nonpayment of any Reimbursement Obligation within one Business Day
after the same becomes due, nonpayment of interest on any Loan within five days
after the same becomes due, or nonpayment of fees or any other obligations under
any of the Loan Documents within ten days after the same becomes due. |
| |
(C) |
Breach of Certain Covenants. The breach by any Borrower of any of the
terms or provisions of Sections 7.1, 7.2(A), 7.2(B),
7.2(K), 7.3 or 7.4. |
| |
(D) |
Other Defaults. The breach by any Borrower or any Subsidiary Guarantor
(other than a breach which constitutes a Default under another provision of this
Section 8.1) of any of the terms or provisions of this Agreement or any
other Loan Document which is not remedied within 30 days after the earlier of
(i) the date on which any Authorized Officer has actual knowledge thereof and
(ii) the receipt of written notice from any Agent or the Required Lenders. |
| |
(E) |
Default as to Other Indebtedness. Failure of the Company, any Subsidiary
Borrower or any other Subsidiary to pay when due any Material Indebtedness; or
the default by the Company, any Subsidiary Borrower or any other Subsidiary in
the performance of any term, provision or condition contained in any Material
Indebtedness Agreement, or any other event shall occur or condition exist, the
effect of which default, event or condition is to cause, or to permit the
holder(s) of such Material Indebtedness to cause such Material Indebtedness to
become due prior to its stated maturity; or any Material Indebtedness of the
Company, any Subsidiary Borrower or any other Subsidiary shall be declared to be
due and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or the
Company, any Subsidiary Borrower or any other Subsidiary shall not pay, or admit
in writing its inability to pay, its debts generally as they become due. |
| |
(F) |
Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company, any of
its Significant Subsidiaries, any Subsidiary Borrower or any Subsidiary
Guarantor shall (i) have an order for relief entered with respect to it
under the United States bankruptcy laws as now or hereafter in effect or cause
or allow any similar event to occur under any bankruptcy or similar law or laws
for the relief of debtors as now or hereafter in effect in any other
jurisdiction, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator, monitor or similar official for it or
any substantial part of its Property, (iv) institute any proceeding seeking
an order for relief under the United States bankruptcy laws as now or hereafter
in effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or any of its Property or its debts under any law relating to
bankruptcy, insolvency or reorganization or compromise of debt or relief of
debtors as now or hereafter in effect in any jurisdiction including, without
limitation, any organization, arrangement or compromise of debt under the laws
of its jurisdiction of incorporation, or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 8.1(F) or (vi) fail to contest in good
faith any appointment or proceeding described in Section 8.1(G). |
| |
(G) |
Involuntary Bankruptcy; Appointment of Receiver, Etc. Without its
application, approval or consent, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company, any Significant Subsidiary,
any Subsidiary Borrower or any Subsidiary Guarantor or for any substantial part
of its Property, or a proceeding described in Section 8.1(F)(iv) shall be
instituted against the Company, any Significant Subsidiary, any Subsidiary
Borrower or any Subsidiary Guarantor and such appointment continues undischarged
or such proceeding continues undismissed or unstayed for a period of 60
consecutive days. |
| |
(H) |
Condemnation; Seizure. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of, all or
any substantial portion of the Property of the Company, any Significant
Subsidiary, any Subsidiary Borrower or any Subsidiary Guarantor taken as a
whole. |
| |
(I) |
Judgments. The Company, any Subsidiary Borrower or any other Subsidiary
shall fail within 30 days to pay, bond or otherwise discharge any judgment or
order for the payment of money in excess of $10,000,000 or any judgments or
orders for the payment of money, the total amount of which for the Company, any
Subsidiary Borrower and/or any other Subsidiary exceeds $35,000,000, which are
not stayed on appeal. |
| |
(J) |
Environmental. The Company or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Company, any of its Subsidiaries or any other Person of any toxic or hazardous
waste or substance into the environment or (ii) violate any Environmental Law,
which, in the case of an event described in the foregoing clause (i) or
(ii), could reasonably be expected to result in liability, individually
or in the aggregate, having a Material Adverse Effect. |
| |
(K) |
Enforceability. Any Loan Document shall fail to remain in full force or
effect against the Company or any Subsidiary or any action shall be taken or
shall fail to be taken to discontinue or to assert the invalidity or
unenforceability of, or which results in the discontinuation or invalidity or
unenforceability of, any Loan Document. |
| |
(L) |
Guarantor Revocation. Any guarantor of the Obligations shall terminate or
revoke any of its obligations under a Guaranty (other than as expressly
permitted hereunder) or breach any of the material terms of its respective
Guaranty. |
| |
(M) |
Change in Control. The occurrence of any Change in Control. |
| |
(N) |
ERISA and Foreign Plans. The Company shall (i) permit to exist any
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of
the Code), with respect to any Benefit Plan, whether or not waived, (ii) fail,
or permit any Controlled Group member to fail, to pay any required installment
or any other payment required under Section 412 of the Code on or before the due
date for such installment or other payment, or (iii) permit a Termination Event
to occur, except where such transactions, events, circumstances, or failures
could not, individually or in the aggregate, reasonably be expected to result in
liability to the Company or any of its Subsidiaries having a Material Adverse
Effect. |
| |
|
A
Default shall be deemed “continuing” until cured or until waived in writing in
accordance with Section 9.3. |
ARTICLE IX:
ACCELERATION; WAIVERS, AMENDMENTS AND REMEDIES
| |
9.1. |
Termination of Revolving Loan Commitments; Acceleration. |
| |
(A) |
If any Default described in Section 8.1(F) or 8.1(G) occurs with
respect to the Company, any Significant Subsidiary, any Subsidiary Borrower or
any Subsidiary Guarantor, the obligations of the Lenders to make Loans hereunder
and the obligation of the Issuing Bank to issue Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent, the Issuing Bank or any Lender and the Borrowers will be and become
thereby unconditionally obligated, without any further notice, act or demand, to
pay to the Administrative Agent an amount in each Agreed Currency, in
immediately available funds, equal to the difference of (x) one hundred five
percent (105%) of the amount of L/C Obligations denominated in such Agreed
Currency at such time, less (y) the amount of such Agreed Currency on deposit in
the L/C Collateral Account at such time which is free and clear of all rights
and claims of third parties and has not been applied against the Obligations
(such difference, in the aggregate for all Agreed Currencies, the
“Collateral Shortfall Amount”), which funds shall
be held in the L/C Collateral Account. If any other Default occurs, the Required
Lenders may (a) terminate or suspend the obligations of the Lenders to make
Loans hereunder and the obligation of the Issuing Bank to issue Letters of
Credit hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which each Borrower
expressly waives, and (b) upon notice to the Borrowers and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrowers to pay, and the Borrowers will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent
the Collateral Shortfall Amount, which funds shall be deposited in the L/C
Collateral Account. |
| |
(B) |
If at any time while any Default is continuing, the Administrative Agent
determines that the Collateral Shortfall Amount at such time is greater than
zero, the Administrative Agent may make demand on the Borrowers to pay, and the
Borrowers will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the L/C Collateral Account. At any time while any
Default is continuing, none of the Borrowers nor any Person claiming on behalf
of or through any Borrower shall have any right to withdraw any of the funds
held in the L/C Collateral Account. |
| |
(C) |
If at any time following any deposit of funds into the L/C Collateral Account
pursuant to clause (A) or (B) of this Section 9.1 the
Default giving rise to such obligation to deposit cash collateral shall be
cured, waived otherwise cease to be continuing and no other Default or any
Unmatured Default shall then have occurred and be continuing, the Administrative
Agent shall determine the Net Aggregate Credit Exposure at such time and release
and disburse funds from the L/C Collateral Account to the Borrowers to the
extent required pursuant to Section 2.4(B)(iii). |
| |
(D) |
If, after acceleration of the maturity of the Obligations or termination of the
obligations of the Lenders to make Loans and the obligation and power of the
Issuing Bank to issue Letters of Credit hereunder as a result of any Default
(other than any Default as described in Section 8.1(F) or (G) with
respect to the Company, any Significant Subsidiary, any Subsidiary Borrower or
any Subsidiary Guarantor) and before any judgment or decree for the payment of
the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrowers, rescind and annul such acceleration and/or termination. |
| |
9.2. |
Preservation of Rights. No delay or omission of the Lenders, the Issuing
Bank or the Administrative Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan or the issuance of a Letter of
Credit notwithstanding the existence of a Default or the inability of the
Company to satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 9.3, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent, the Issuing Bank and the Lenders until the Obligations have been paid in
full in cash. |
| |
9.3. |
Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Company may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Company hereunder or
waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender (which is not a
defaulting Lender) affected thereby: |
| |
(i) |
Postpone or extend the Revolving Loan Termination Date or any other date fixed
for any payment of principal of, or interest on, the Loans, the Reimbursement
Obligations or any fees or other amounts payable to such Lender or extend the
expiry date of any Letter of Credit to a date after the Revolving Loan
Termination Date; |
| |
(ii) |
Reduce the principal amount of any Loans or Reimbursement Obligations, or reduce
the rate or extend the time of payment of interest or fees thereon;
provided, however, that (a) modifications to the provisions
relating to prepayments of Loans and other Obligations and (b) a waiver or other
modification of the application of the default rate of interest pursuant to
Section 2.10 hereof shall, in each case, only require the approval of the
Required Lenders; |
| |
(iii) |
Reduce the percentage specified in the definition of Required Lenders or any
other percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definitions of “Required
Lenders” or “Pro Rata Share”; |
| |
(iv) |
Increase the amount of the Revolving Loan Commitment of any Lender hereunder or
increase any Lender’s Pro Rata Share; |
| |
(v) |
Permit any Borrower to assign its rights under this Agreement; |
| |
(vi) |
Other than pursuant to a transaction permitted by the terms of this Agreement,
release any guarantor from its obligations under its respective Guaranty; or |
| |
(vii) |
Amend this Section 9.3. |
| |
|
No amendment of any provision of this
Agreement relating to (a) the Administrative Agent shall be effective without the written
consent of the Administrative Agent, (b) Swing Line Loans shall be effective without the
written consent of the Swing Line Bank and (c) the Issuing Bank shall be effective without
the written consent of the Issuing Bank. The Administrative Agent may waive payment of the
fee required under Section 13.3(C) without obtaining the consent of any of the
Lenders. |
ARTICLE X: GENERAL
PROVISIONS
| |
10.1. |
Survival of Representations. All representations and warranties of the
Company contained in this Agreement shall survive delivery of this Agreement and
the making of the Loans herein contemplated so long as any principal, accrued
interest, fees, or any other amount due and payable under any Loan Document is
outstanding and unpaid (other than contingent reimbursement and indemnification
obligations). |
| |
10.2. |
Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to any
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation. |
| |
10.3. |
Accounting. Except as provided to the contrary herein, all accounting
terms used in the calculation of any financial covenant or test shall be
interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles. If, subsequent to the Closing Date, any changes in
generally accepted accounting principles as in effect in the United States of
America are required or permitted and are adopted by the Company or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants set forth in Section 7.4 or any other financial test
set forth in this Agreement or in the related definitions or terms used therein
(“Accounting Changes”), the parties hereto agree,
at the Company’s request, to enter into negotiations, in good faith, in
order to amend such provisions in a credit neutral manner so as to reflect
equitably such changes with the desired result that the criteria for evaluating
the Company’s and its Subsidiaries’ financial condition shall be the
same after such changes as if such changes had not been made; provided,
however, that until such provisions are amended in a manner reasonably
satisfactory to the Administrative Agent and the Required Lenders, no Accounting
Change shall be given effect in such calculations. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles in connection with the financial covenants set forth in Section
7.4 and each other financial test set forth in this Agreement shall mean
generally accepted accounting principles as in effect in the United States of
America as of the Closing Date but giving effect to the relevant Accounting
Changes, subject to further modification in accordance with this Section
10.3. |
| |
10.4. |
Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents. |
| |
10.5. |
Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than any prior agreements and understandings that are expressly stated to
survive the effectiveness hereof. |
| |
10.6. |
Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns. |
| |
10.7. |
Expenses; Indemnification. |
| |
(A) |
Expenses. The Borrowers shall reimburse the Administrative Agent and the
Arrangers for any reasonable costs and out-of-pocket expenses (including
reasonable attorneys’ and paralegals’ fees and time charges of outside
counsel and paralegals for the Administrative Agent) paid or incurred by the
Administrative Agent or the Arrangers in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
distribution (including, without limitation, via the internet) and
administration of the Loan Documents. The Borrowers also agree to reimburse the
Administrative Agent, the Arrangers and the Lenders for any costs and
out-of-pocket expenses (including reasonable attorneys’ and
paralegals’ fees and time charges of outside counsel and paralegals for the
Administrative Agent, the Arrangers and the Lenders) paid or incurred by the
Administrative Agent, the Arrangers or any Lender in connection with the
collection of the Obligations and enforcement of the Loan Documents. |
| |
(B) |
Indemnity. The Borrowers further agree to defend, protect, indemnify and
hold harmless the Administrative Agent, each Syndication Agent, each
Documentation Agent, each Arranger, and each and all of the Lenders and each of
their respective Affiliates, and each of such Agents’, Arrangers’,
Lenders’ and Affiliates’ respective officers, directors, trustees,
investment advisors, employees, attorneys and agents (collectively, the
“Indemnitees”), based upon its obligations, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of outside
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), imposed on, incurred by or asserted against such
Indemnitees in any manner relating to or arising out of this Agreement or any of
the other Loan Documents, or any act, event or transaction related or attendant
thereto or to the making of the Loans, and the issuance of and participation in
Letters of Credit hereunder, the management of such Loans or Letters of Credit,
the use or intended use of the proceeds of the Loans or Letters of Credit
hereunder, or any of the other transactions contemplated by the Loan Documents
(collectively, the “Indemnified Matters”);
provided, however, the Borrowers shall not have any obligation to
an Indemnitee hereunder with respect to Indemnified Matters to the extent caused
by or resulting from the willful misconduct or gross negligence of such
Indemnitee with respect to the Loan Documents. If the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, each Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees. |
| |
(C) |
Waiver of Certain Claims; Settlement of Claims. Each Borrower further
agrees to assert no claim against any of the Indemnitees on any theory of
liability seeking consequential, special, indirect, exemplary or punitive
damages. No settlement shall be entered into by the Company or any of its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement and the other Loan Documents unless such settlement releases all
Indemnitees from any and all liability with respect thereto. |
| |
(D) |
Survival of Agreements. The obligations and agreements of the Borrowers
under this Section 10.7 and each other provision hereunder or in any
other Loan Document whereby the Company or any of its Subsidiaries agrees to
reimburse or indemnify any Holder of Obligations shall survive the termination
of this Agreement. |
| |
10.8. |
Numbers of Documents. All statements, notices, closing documents and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders. |
| |
10.9. |
Confidentiality. Each Lender agrees to hold any confidential information
which it may receive from the Company or any of its Subsidiaries pursuant to
this Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as requested pursuant to or as
required by law, regulation or legal process, (v) to any Person as may be
required by law in connection with any legal proceeding to which such Lender is
a party, (vi) to such Lender’s direct or indirect contractual
counterparties in interest rate swap agreements or credit derivative
transactions relating to the Loans or to legal counsel, accountants and other
professional advisors to such counterparties, (vii) as permitted by Section
13.4 and (viii) to rating agencies if requested or required by such agencies
in connection with a rating relating to the Advances hereunder. |
| |
10.10. |
Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable. |
| |
10.11. |
Nonliability of Lenders. The relationship between the Borrowers and the
Lenders and the Administrative Agent shall be solely that of borrowers and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrowers to review or inform the
Borrowers of any matter in connection with any phase of the Borrowers’
business or operations. |
| |
10.12. |
GOVERNING LAW. ANY DISPUTE BETWEEN THE BORROWERS AND THE
ADMINISTRATIVE AGENT, THE ARRANGERS OR ANY LENDER ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THE
BORROWERS AND THE ADMINISTRATIVE AGENT, THE ARRANGERS OR THE LENDERS IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING 735 ILCS SECTION 105/5-1 ET SEQ. BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS. |
| |
10.13. |
CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL. |
| |
(A) |
NON-EXCLUSIVE JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS. |
| |
(i) |
EACH BORROWER WAIVES PERSONAL SERVICE OF ANY PROCESS UPON IT AND IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS, PROCESS OR SUMMONSES IN
ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY THE
ADMINISTRATIVE AGENT OR THE LENDERS BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE COMPANY ADDRESSED AS PROVIDED HEREIN. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE
AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER
MANNER PERMITTED BY APPLICABLE LAW. |
| |
(ii) |
EACH SUBSIDIARY BORROWER HEREBY IRREVOCABLY APPOINTS THE COMPANY AS ITS AGENT
FOR SERVICE OF PROCESS IN ANY PROCEEDING REFERRED TO IN THIS SECTION
10.13 AND AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY
BE MADE BY MAILING OR DELIVERING A COPY THEREOF TO IT CARE OF THE COMPANY AT ITS
ADDRESS FOR NOTICES SET FORTH IN ARTICLE XIV OF THIS AGREEMENT. |
| |
(C) |
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. |
| |
10.14. |
Subordination of Intercompany Indebtedness. Each Borrower agrees that all
Intercompany Indebtedness held by such Borrower shall be subordinate and subject
in right of payment to the prior payment, in full and in cash, of all
Obligations; provided, that, and not in contravention of the foregoing,
so long as no Default has occurred and is continuing such Borrower may make
loans to and receive payments in the ordinary course with respect to such
Intercompany Indebtedness from the related obligor. Should any payment,
distribution, security or instrument or proceeds thereof be received by such
Borrower upon or with respect to the Intercompany Indebtedness in contravention
of this Agreement after the occurrence of a Default, including, without
limitation, an event described in Section 8.1(F) or (G), prior to
the satisfaction of all of the Obligations (other than contingent indemnity
obligations) and the termination of all financing arrangements pursuant to any
Loan Document or Guaranteed Hedging Agreement among the Borrowers and the
Lenders (and their Affiliates), such Borrower shall receive and hold the same in
trust, as trustee, for the benefit of the Holders of Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of such
Persons, in precisely the form received (except for the endorsement or
assignment of the Borrowers where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by such Borrower as the property of the Holders of Obligations. If any
Borrower fails to make any such endorsement or assignment to the Administrative
Agent, the Administrative Agent or any of its officers or employees are
irrevocably authorized to make the same. Each Borrower agrees that until the
Obligations (other than the contingent indemnity obligations) have been paid in
full (in cash) and satisfied and all financing arrangements pursuant to any Loan
Document or Guaranteed Hedging Agreement among the Borrowers and the Lenders
(and their Affiliates) have been terminated, no Borrower will assign or transfer
to any Person any Intercompany Indebtedness. |
ARTICLE XI: THE
ADMINISTRATIVE AGENT
| |
11.1. |
Appointment; Nature of Relationship. Bank One is appointed by the Lenders
as the Administrative Agent hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Administrative Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article XI. Notwithstanding the use of the
defined term “Administrative Agent,” it is expressly understood and
agreed that the Administrative Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Lenders with
only those duties as are expressly set forth in this Agreement and the other
Loan Documents. In its capacity as the Lenders’ contractual representative,
the Administrative Agent (i) does not assume any fiduciary duties to any of the
Lenders, (ii) is a “representative” of the Lenders within the meaning
of Section 9-102 of the Uniform Commercial Code as in effect from time to time
in the State of Illinois (or any successor provision) and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders, for itself and on behalf of its affiliates, agrees to assert no claim
against the Administrative Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender waives. |
| |
11.2. |
Powers. The Administrative Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Administrative
Agent by the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties or
fiduciary duties to the Lenders, or any obligation to the Lenders to take any
action hereunder or under any of the other Loan Documents except any action
specifically provided by the Loan Documents required to be taken by the
Administrative Agent. |
| |
11.3. |
General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrowers, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found to have been
caused by the gross negligence or willful misconduct of such Person. |
| |
11.4. |
No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of
items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents for perfection or
priority of the Liens on any collateral subject to the Loan Documents, the
execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or the transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the Obligations, the Company or any
of its Subsidiaries. |
| |
11.5. |
Action on Instructions of Lenders. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders (or all of the Lenders in the event that and to the extent
that this Agreement expressly requires such), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all owners of Loans. Upon receipt of any such instructions from
the Required Lenders (or all of the Lenders in the event that and to the extent
that this Agreement expressly requires such), the Administrative Agent shall be
permitted to act on behalf of the full principal amount of the Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document 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. |
| |
11.6. |
Employment of Administrative Agent and Counsel. The Administrative Agent
may execute any of its duties as the Administrative Agent hereunder and under
any other Loan Document by or through employees, agents and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent’s duties hereunder and under
any other Loan Document. |
| |
11.7. |
Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent. |
| |
11.8. |
The Administrative Agent’s Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrowers for which the Administrative Agent is entitled to
reimbursement by the Borrowers under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents;
provided, that no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have arisen solely from the gross negligence
or willful misconduct of the Administrative Agent. The obligations and
agreements of the Lenders under this Section 11.8 shall survive the
termination of this Agreement. |
| |
11.9. |
Rights as a Lender. With respect to its Revolving Loan Commitment, Loans
made by it and Letters of Credit issued by it, the Administrative Agent shall
have the same rights and powers hereunder and under any other Loan Document as
any Lender or Issuing Bank and may exercise the same as though it were not the
Administrative Agent, and the term “Lender” or “Lenders”,
“Issuing Bank” or “Swing Line Bank” shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries in which such Person is not
prohibited hereby from engaging with any other Person. |
| |
11.10 |
Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arrangers
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arrangers or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents. |
| |
11.11 |
Successor Administrative Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Company. Upon
any such resignation, the Required Lenders shall have the right to appoint, on
behalf of the Borrowers and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent’s giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Company,
which approval shall not be unreasonably withheld or delayed. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as the
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents. |
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11.12. |
No Duties Imposed Upon Syndication Agents, Documentation Agents or
Arrangers. No Person identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreement as a
“Syndication Agent”, a “Documentation Agent” or an
“Arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, if such Person is a
Lender, those applicable to all Lenders as such. Without limiting the foregoing,
no Person identified on the cover page to this Agreement, the signature pages to
this Agreement or otherwise in this Agreement as a “Syndication
Agent”, a “Documentation Agent” or an “Arranger” shall
have or be deemed to have any fiduciary duty to or fiduciary relationship with
any Lender. In addition to the agreement set forth in Section 11.10, each
of the Lenders acknowledges that it has not relied, and will not rely, on any
Person so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder. |
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11.13. |
Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Company referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. |
| |
11.14. |
Delegation to Affiliates. The Borrowers and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate’s directors,
officers, agents and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which the Administrative Agent is entitled
under terms of this Agreement. |
| 11.15 |
(C) |
Authority with Respect to Guarantees. |
| |
(A) |
Authority to Take Action. Each Lender authorizes the Administrative Agent
to enter into, if a signature thereon becomes necessary, any Guaranty, and to
take all action contemplated by such document, including, without limitation,
all enforcement actions. Each Lender agrees that no Holder of Obligations (other
than the Administrative Agent) shall have the right individually to
independently enforce any Guaranty, it being understood and agreed that such
rights and remedies may be exercised solely by the Administrative Agent for the
benefit of the Holders of Obligations upon the terms of the applicable Guaranty.
In furtherance and without limitation of the foregoing, the Administrative Agent
is hereby authorized and given a power of attorney by and on behalf of each of
the Holders of Obligations to execute any Guaranty, if necessary. |
| |
(B) |
Authority to Release Guarantors. The Lenders hereby authorize the
Administrative Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under any of the Guarantees (i) upon
termination of the Commitments and payment and satisfaction of all of the
Obligations at any time arising under or in respect of this Agreement or the
Loan Documents and Guaranteed Hedging Agreements or the transactions
contemplated hereby or thereby (which satisfaction, in the case of outstanding
Letters of Credit, may take the form of a backstop letter of credit from an
issuer acceptable to the Administrative Agent or cash collateral); (ii) in
connection with any transaction which is permitted by this Agreement (including,
without limitation, the permitted sale by the Company or any Subsidiary of one
hundred percent (100%) of the Capital Stock of any Subsidiary Guarantor owned by
the Company and its Subsidiaries), (iii) as required pursuant to Section
7.2(K) or (iv) if approved, authorized or ratified in writing by the
Required Lenders, unless such release is required to be approved by all of the
Lenders hereunder. Upon request by the Administrative Agent at any time, the
Lenders will confirm in writing the Administrative Agent’s authority to
release particular Subsidiary Guarantors pursuant to this Section
11.15(B). |
ARTICLE XII: SETOFF;
RATABLE PAYMENTS
| |
12.1. |
Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to any Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due. It is
understood and agreed that no deposits of any Foreign Subsidiary Borrower or
Indebtedness held by or owing to any Foreign Subsidiary Borrower shall be offset
by any Lender and applied towards the Obligations incurred solely by or on
behalf of the Company or any Domestic Subsidiary Borrower unless such Foreign
Subsidiary Borrower shall be jointly and severally liable for the Obligations of
all of the Borrowers at such time pursuant to Section 1.4. |
| |
12.2. |
Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 2.14(E), 4.1, 4.2 or 4.4) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable share of the Loans.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to the obligations
owing to them. In case any such payment is disturbed by legal process or
otherwise, appropriate further adjustments shall be made. |
| |
12.3. |
Relations Among Lenders. |
| |
(A) |
Except with respect to the exercise of set-off rights of any Lender in
accordance with Section 12.1, the proceeds of which are applied in
accordance with this Agreement, each Lender agrees that it will not take any
action, nor institute any actions or proceedings, against any Borrower or any
other obligor hereunder or with respect to any Loan Document, without the prior
written consent of the Required Lenders or, as may be provided in this Agreement
or the other Loan Documents, at the direction of the Administrative Agent. |
| |
(B) |
The Lenders are not partners or co-venturers, and no Lender shall be liable for
the acts or omissions of, or (except as otherwise set forth herein in case of
the Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders to
enforce on the payment of the principal of and interest on any Loan after the
date such principal or interest has become due and payable pursuant to the terms
of this Agreement. |
| |
12.4. |
Disclosure. Each Borrower and each Lender hereby acknowledges and agrees
that Bank One and/or its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrowers and their
respective Affiliates. |
| |
12.5. |
Nonreliance. Each Lender hereby represents that it is not relying on or
looking to any Margin Stock for the repayment of the Loans and Reimbursement
Obligations provided for herein. |
| |
12.6. |
Representations and Covenants Among Lenders. Each Lender represents and
covenants for the benefit of all other Lenders and the Administrative Agent that
such Lender is not satisfying and shall not satisfy any of its obligations
pursuant to this Agreement with any assets considered for any purposes of ERISA
or Section 4975 of the Code to be assets of or on behalf of any “plan”
as defined in Section 3(3) of ERISA or Section 4975 of the Code, regardless of
whether subject to ERISA or Section 4975 of the Code. |
ARTICLE XIII: BENEFIT OF
AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
| |
13.1. |
Successors and Assigns; Designated Lenders. |
| |
(A) |
Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrowers, the
Administrative Agent and the Lenders and their respective successors and assigns
permitted hereby, except that (i) no Borrower shall have the right to assign its
rights or obligations under the Loan Documents without the prior written consent
of each Lender, (ii) any assignment by any Lender must be made in compliance
with Section 13.3, and (iii) any transfer by Participants must be made in
compliance with Section 13.2. Any attempted assignment or transfer by any
party not made in compliance with this Section 13.1 shall be null and
void, unless such attempted assignment or transfer is treated as a participation
in accordance with Section 13.3(C). The parties to this Agreement
acknowledge that clause (ii) of this Section 13.1 relates only to
absolute assignments and this Section 13.1 does not prohibit assignments
creating security interests, including, without limitation, (x) any pledge or
assignment by any Lender of all or any portion of its rights under this
Agreement and any promissory note issued hereunder to a Federal Reserve Bank,
(y) in the case of a Lender which is a Fund, any pledge or assignment of all or
any portion of its rights under this Agreement and any promissory note issued
hereunder to its trustee in support of its obligations to its trustee or (z) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any promissory note issued hereunder to direct or indirect
contractual counterparties in interest rate swap agreements or credit derivative
transactions relating to the Loans; provided, however, that no
such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 13.3. The
Administrative Agent may treat the Person which made any Revolving Loan or which
holds any promissory note issued hereunder as the owner thereof for all purposes
hereof unless and until such Person complies with Section 13.3;
provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person
which made any Revolving Loan or which holds any promissory note issued
hereunder to direct payments relating to such Revolving Loan or promissory note
issued hereunder to another Person. Any assignee of the rights to any Revolving
Loan or any promissory note issued hereunder agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the owner of the rights to any
Loan (whether or not a promissory note has been issued hereunder in evidence
thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan. |
| |
(i) |
Subject to the terms and conditions set forth in this Section 13.1(B),
any Lender may from time to time elect to designate an Eligible Designee to
provide all or any part of the Loans to be made by such Lender pursuant to this
Agreement; provided, that the designation of an Eligible Designee by any
Lender for purposes of this Section 13.1(B) shall be subject to the
approval of the Administrative Agent (which consent shall not be unreasonably
withheld or delayed). Upon the execution by the parties to each such designation
of an agreement in the form of Exhibit K hereto (a
“Designation Agreement”) and the acceptance
thereof by the Administrative Agent, the Eligible Designee shall become a
Designated Lender for purposes of this Agreement. The Designating Lender shall
thereafter have the right to permit the Designated Lender to provide all or a
portion of the Loans to be made by the Designating Lender pursuant to the terms
of this Agreement and the making of the Loans or portion thereof shall satisfy
the obligations of the Designating Lender to the same extent, and as if, such
Loan was made by the Designating Lender. As to any Loan made by it, each
Designated Lender shall have all the rights a Lender making such Loan would have
under this Agreement and otherwise; provided, that (w) each Designated
Lender shall comply with the provisions of Section 2.14(E) to the same
extent as if it were a Lender, (x) all voting rights under this Agreement shall
be exercised solely by the Designating Lender, (y) each Designating Lender shall
remain solely responsible to the other parties hereto for its obligations under
this Agreement, including the obligations of a Lender in respect of Loans made
by its Designated Lender and (z) no Designated Lender shall be entitled to
reimbursement under Section 2.14(E), Article IV or Section
10.7 for any amount which would exceed the amount that would have been
payable by any Borrower to the Lender from which the Designated Lender obtained
any interests hereunder. No additional promissory notes shall be required to be
issued hereunder with respect to Loans provided by a Designated Lender;
provided, however, to the extent any Designated Lender shall
advance funds, the Designating Lender shall be deemed to hold the promissory
notes issued hereunder in its possession as an administrative agent for such
Designated Lender to the extent of the Loan funded by such Designated Lender.
Such Designating Lender shall act as an administrative agent for its Designated
Lender and give and receive notices and communications hereunder. Any payments
for the account of any Designated Lender shall be paid to its Designating Lender
as administrative agent for such Designated Lender and neither any Borrower nor
the Administrative Agent shall be responsible for any Designating Lender’s
application of such payments. In addition, any Designated Lender may (1) with
notice to, but without the consent of the Company or the Administrative Agent,
assign all or portions of its interests in any Loans to its Designating Lender
or to any financial institution consented to by the Administrative Agent
providing liquidity and/or credit facilities to or for the account of such
Designated Lender and (2) subject to advising any such Person that such
information is to be treated as confidential in accordance with Section
13.4, disclose on a confidential basis any non-public information relating
to its Loans to any rating agency, commercial paper dealer or provider of any
guarantee, surety or credit or liquidity enhancement to such Designated Lender. |
| |
(ii) |
Each party to this Agreement hereby agrees that it shall not institute against,
or join any other Person in instituting against, any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceedings under any federal or state bankruptcy or similar law for one
year and a day after the payment in full of all outstanding senior indebtedness
of any Designated Lender; provided, that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage and expense arising out of its inability
to institute any such proceeding against such Designated Lender. This Section
13.1(B) shall survive the termination of this Agreement. |
| |
(A) |
Permitted Participants; Effect. Any Lender may at any time sell to one or
more banks or other entities (“Participants”)
participating interests in any Revolving Credit Obligations of such Lender, any
promissory note issued hereunder held by such Lender, any Revolving Loan
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender’s obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Revolving Credit Obligations and the holder of any promissory
note issued to it hereunder in evidence thereof for all purposes under the Loan
Documents, all amounts payable by the Borrowers under this Agreement shall be
determined as if such Lender had not sold such participating interests, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under the Loan Documents. |
| |
(B) |
Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which would require consent of all of the Lenders
pursuant to the terms of Section 9.3. |
| |
(C) |
Benefit of Certain Provisions. Each Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 in
respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents; provided, that each
Lender shall retain the right of setoff provided in Section 12.1 with
respect to the amount of participating interests sold to each Participant. The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 12.1, agrees to share
with each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 12.2 as if
each Participant were a Lender. Each Borrower further agrees that each
Participant shall be entitled to the benefits of Section 2.14(E),
Article IV and Section 10.7 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section
13.3; provided, that (i) a Participant shall not be entitled to
receive any greater payment under Section 2.14(E), Article IV or
Section 10.7 than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for its own
account, unless the sale of such interest to such Participant is made with the
prior written consent of the Company and (ii) any Participant agrees to comply
with the provisions of Section 2.14(E) and Article IV to the same
extent as if it were a Lender. |
| |
(A) |
Permitted Assignments. Any Lender may at any time assign to one or more
banks or other entities (“Purchasers”) all or any
part of its rights and obligations under the Loan Documents. Such assignment
shall be evidenced by an agreement substantially in the form of Exhibit D
or in such other form as may be agreed to by the parties thereto (each such
agreement, an “Assignment Agreement”). Each such
assignment with respect to a Purchaser which is not a Lender, an Affiliate of a
Lender or an Approved Fund shall, unless otherwise consented to in writing by
the Administrative Agent and, so long as no Default has occurred and is
continuing, the Company, either be in an amount equal to the entire applicable
Revolving Loan Commitment and Revolving Credit Obligations of the assigning
Lender or (unless each of the Company and the Administrative Agent otherwise
consents) be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. The amount of the assignment shall be based on the
Revolving Loan Commitment and Revolving Credit Obligations subject to the
assignment, determined as of the date of such assignment or as of the
“Trade Date,” if the “Trade Date” is specified in the
Assignment Agreement. |
| |
(B) |
Consents. The consent of the Company shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an Affiliate of
a Lender or an Approved Fund; provided, that the consent of the Company
shall not be required if a Default has occurred and is continuing. The consent
of the Administrative Agent shall be required prior to an assignment becoming
effective unless the Purchaser is a Lender, an Affiliate of a Lender or an
Approved Fund. Any consent required under this Section 13.3(B) shall not
be unreasonably withheld or delayed. |
| |
(C) |
Effect; Effective Date. Upon (i) delivery to the Administrative Agent of
an Assignment Agreement, together with any consents required by Sections
13.3(A) and 13.3(B), and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment (unless such fee is waived
by the Administrative Agent or unless such assignment is made to such assigning
Lender’s Affiliate), such assignment shall become effective on the
effective date specified in such assignment. The Assignment Agreement shall
contain a representation and warranty by the Purchaser to the effect that none
of the funds, money, assets or other consideration used to make the purchase and
assumption of the Revolving Loan Commitment and Revolving Credit Obligations
under the applicable Assignment Agreement constitutes “plan assets” as
defined under ERISA and that the rights, benefits and interests of the Purchaser
in and under the Loan Documents will not be “plan assets” under ERISA.
On and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by or on behalf of the Lenders and shall have all the rights, benefits
and obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party thereto, and the transferor Lender shall be released
with respect to the Revolving Credit Obligations assigned to such Purchaser
without any further consent or action by the Borrowers, the Lenders or the
Administrative Agent. In the case of an assignment covering all of the assigning
Lender’s rights, benefits and obligations under this Agreement, such Lender
shall cease to be a Lender hereunder but shall continue to be entitled to the
benefits of, and subject to, those provisions of this Agreement and the other
Loan Documents which survive payment of the Obligations and termination of the
Loan Documents. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 13.3 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
13.2. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3(C), the transferor Lender, the Administrative Agent and
the Borrowers shall, if the transferor Lender or the Purchaser desires that its
Loans be evidenced by promissory notes, make appropriate arrangements so that,
upon cancellation and surrender to the Borrowers of the previously issued
promissory notes (if any) held by the transferor Lender, new promissory notes
issued hereunder or, as appropriate, replacement promissory notes are issued to
such transferor Lender, if applicable, and new promissory notes or, as
appropriate, replacement promissory notes, are issued to such Purchaser, in each
case in principal amounts reflecting their respective Revolving Loan Commitments
(or, if the Revolving Loan Termination Date has occurred, their respective
Revolving Credit Obligations), as adjusted pursuant to such assignment. |
| |
(D) |
The Register. The Administrative Agent, acting solely for this purpose as
an Administrative Agent of the Borrowers (and the Borrowers hereby designate the
Administrative Agent to act in such capacity), shall maintain at one of its
offices in Chicago, Illinois a copy of each Assignment Agreement delivered to it
and a register (the “Register”) for the
recordation of the names and addresses of the Lenders, and the Revolving Loan
Commitments of, and principal amounts of and interest on the Loans owing to,
each Lender pursuant to the terms hereof from time to time and whether such
Lender is an original Lender or assignee of another Lender pursuant to an
assignment under this Section 13.3. The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice. |
| |
13.4. |
Dissemination of Information. Each Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a
“Transferee”) and any prospective Transferee any and all information
in such Lender’s possession concerning the creditworthiness of the Company
and its Subsidiaries; provided, that each Transferee and prospective
Transferee agrees to be bound by Section 10.9 of this Agreement. |
| |
13.5. |
Tax Certifications. If any interest in any Loan Document is transferred
to any Transferee, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 2.14(E) and Article IV. |
ARTICLE XIV: NOTICES
| |
(A) |
Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
Section 14.1(B)), all notices, requests and other communications to any
party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
if to any Borrower, at the address or facsimile number of the Company set forth
on the signature pages hereof, (y) in the case of the Lenders or the
Administrative Agent, at its address or facsimile number set forth on the
signature pages hereof (or, with respect to any Lender which is not a party
hereto as of the Closing Date, at its address or facsimile number set forth in
any Assignment Agreement or Commitment and Acceptance) or (z) in the case of any
party, at such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Company in
accordance with the provisions of this Section 14.1(A). Each such notice,
request or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, seventy-two (72)
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; provided, that notices to the
Administrative Agent under Article II shall not be effective until
received. |
| |
(B) |
Electronic Communications. |
| |
(i) |
Notices and other communications to the Lenders or the Issuing Bank may be
delivered or furnished by electronic communication (including e-mail and
internet or intranet websites) pursuant to procedures approved by the
Administrative Agent or as otherwise determined by the Administrative Agent;
provided, that the foregoing shall not apply to notices to any Lender or
the Issuing Bank pursuant to Article II if such Lender or the Issuing
Bank, as applicable, has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication. The
Administrative Agent or the Company, on behalf of each Borrower, may, in its
respective discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it or
as it otherwise determines; provided, that such determination or approval
may be limited to particular notices or communications. |
| |
(ii) |
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement); provided, that if such notice
or other communication is not given during the normal business hours of the
recipient, such notice or communication shall be deemed to have been given at
the opening of business on the next Business Day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor. |
| |
14.2. |
Change of Address. Each of the Borrowers and the Administrative Agent may
change the address for service of notice upon it by a notice in writing to the
other parties hereto, including, without limitation, each Lender. Each Lender
may change the address for service of notice upon it by a notice in writing to
the Company and the Administrative Agent. |
| |
14.3. |
USA PATRIOT ACT NOTIFICATION. The following notification is provided to
the Borrowers pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318: |
| |
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person or
entity that opens an account, including any deposit account, treasury management account,
loan, other extension of credit, or other financial services product. What this means for
the Borrowers: When a Borrower opens an account, the Administrative Agent and the Lenders
will ask for such Borrower’s name, tax identification number, business address, and
other information that will allow the Administrative Agent and the Lenders to identify
such Borrower. The Administrative Agent and the Lenders may also ask to see such
Borrower’s legal organizational documents or other identifying documents. |
ARTICLE XV: COUNTERPARTS
This
Agreement may be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
The
remainder of this page is intentionally blank.
SIGNATURE PAGE TO
ARVINMERITOR, INC. CREDIT AGREEMENT
SIGNATURE PAGE TO ARVINMERITOR,
INC. CREDIT AGREEMENT
IN
WITNESS WHEREOF, the Company, the Initial Subsidiary Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above written.
ARVINMERITOR, INC., as the Company
By:___________________________
Name: Xxxxx Xxxxx
Title: Vice President and Treasurer
Address: 0000 X. Xxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Attention: [_ _]
Telephone No.: [_ _]
Facsimile No.: [_ _]
E-Mail: [_ _]
FEIN: [_ _]
ARVINMERITOR FINANCE IRELAND, as the Initial Subsidiary
Borrower
By:___________________________
Name: Xxxxx X. Xxxxxxx
Title: [_ _]
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent, as Swing Line Lender, as Issuing Bank
and as a Lender
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
SIGNATURE PAGE TO ARVINMERITOR, INC. CREDIT AGREEMENT
SIGNATURE PAGE TO ARVINMERITOR, INC. CREDIT AGREEMENT
JPMORGAN CHASE BANK,
as a Syndication Agent and as a Lender
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
CITICORP NORTH AMERICA, INC.,
as a Syndication Agent and as a Lender
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
ABN AMRO BANK N.V.,
as a Documentation Agent and as a Lender
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
BNP PARIBAS,
as a Documentation Agent and as a Lender
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
UBS SECURITIES LLC,
as a Documentation Agent and as a Lender
By:___________________________
Name:
Title:
Address:
Attention:
Telephone No.:
Facsimile No.:
E-Mail:
[OTHER LENDERS TO FOLLOW]
A-1-XV-2
A-1
PRICING SCHEDULE
============ ============= ============= ============ ============= ============ ============
LEVEL LEVEL II LEVEL III XXXXX XX XXXXX XXXXX XX XXXXX XXX
I STATUS STATUS STATUS STATUS V STATUS STATUS STATUS
===================== ============ ============= ============= ============ ============= ============ ============
===================== ============ ============= ============= ============ ============= ============ ============
RATING = Baa2 and = Xxx0 Xx0 Xx0 and Ba2 <Ba2
Ba1 and BB+
BBB- or
or Ba1 and
= BBB and Baa3 and and BB and or
= BBB- BB+ BB+ BB <BB
===================== ============ ============= ============= ============ ============= ============ ============
===================== ============ ============= ============= ============ ============= ============ ============
Applicable Facility 0.175% 0.25% 0.275% 0.30 % 0.35% 0.375% 0.50%
Fee Percentage
--------------------- ------------ ------------- ------------- ------------ ------------- ------------ ------------
Applicable Floating
Rate Margin 0.00% 0.00% 0.00% 0.00% 0.15% 0.25% 0.375%
--------------------- ------------ ------------- ------------- ------------ ------------- ------------ ------------
Applicable
Eurocurrency Margin
and Applicable L/C
Fee Percentage 0.825 % 1.00% 1.10% 1.20% 1.40% 1.50% 1.625%
--------------------- ------------ ------------- ------------- ------------ ------------- ------------ ------------
--------------------- ------------ ------------- ------------- ------------ ------------- ------------ ------------
Applicable
Utilization Fee
Percentage 0.125% 0.125% 0.125% 0.125% 0.125% 0.125% 0.125%
===================== ============ ============= ============= ============ ============= ============ ============
For
the purposes of this Schedule, the following terms have the following meanings, subject to
the final two paragraphs of this Schedule:
“Level
I Status” exists at any date if, on such date, the Company’s
Xxxxx’x Rating is Baa2 or better and the Company’s S&P
Rating is BBB or better.
“Level
II Status” exists at any date if, on such date, (i) the Company has
not qualified for Level I Status and (ii) the Company’s Xxxxx’x Rating is Baa3
or better and the Company’s S&P Rating is BBB- or better.
“Level
III Status” exists at any date if, on such date, (i) the Company has
not qualified for Level I or II Status and (ii) the Company’s Xxxxx’x Rating is
Ba1 and the Company’s S&P Rating is BBB- OR the
Company’s Xxxxx’x Rating is Baa3 and the Company’s S&P
Rating is BB+.
“Level
IV Status” exists at any date if, on such date, (i) the Company has
not qualified for Level I, II or III Status and (ii) the Company’s Xxxxx’x
Rating is Ba1 and the Company’s S&P Rating is BB+.
“Level
V Status” exists at any date if, on such date, (i) the Company has not
qualified for Level I, II, III or IV Status and (ii) the Company’s Xxxxx’x
Rating is Ba2 and the Company’s S&P Rating is BB+ OR the
Company’s Xxxxx’x Rating is Ba1 and the Company’s S&P
Rating is BB.
“Level
VI Status” exists at any date if, on such date, (i) the Company has
not qualified for Level I , II, III, IV or V Status and (ii) the Company’s
Xxxxx’x Rating is Ba2 and the Company’s S&P Rating is
BB.
“Level
VII Status” exists at any date if, on such date, the Company has not
qualified for Level I, II, III, IV, V or VI Status.
“Status”
means Level I Status, Level II Status, Level III Status, Level IV Status, Level V Status,
Level VI Status or Level VII Status.
In
addition to the provisions set forth above, if a split occurs between the Xxxxx’x
Rating and the S&P Rating that is greater than one ratings category, then the pricing
shall be that set forth above with respect to the combination of (i) the higher of such
ratings and (ii) the rating of the other ratings service that is one ratings category
below the ratings category corresponding to such higher rating.
The
Applicable Eurocurrency Margin, the Applicable Floating Rate Margin, the Applicable
Facility Fee Percentage, the Applicable L/C Fee Percentage and the Applicable Utilization
Fee Percentage shall each be determined in accordance with the foregoing table based on
the Company’s Status as determined from its then-current Xxxxx’x Rating and
S&P Rating. The credit rating in effect on any date for the purposes of this Schedule
is that in effect at the close of business on such date. If at any time the Company has no
Xxxxx’x Rating or no S&P Rating, Level VII Status shall exist.
EXHIBIT A
TO
CREDIT AGREEMENT
Revolving Loan
Commitments
----------------------------------------------------- -----------------------------------------------------
Lender Revolving Loan Commitment
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Bank One, NA (Main Office Chicago) $50,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
JPMorgan Chase Bank $50,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Citicorp North America, Inc. $100,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
UBS Loan Finance LLC $75,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
ABN AMRO Bank N.V. $75,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
BNP Paribas $75,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Xxxxxx Commercial Paper Inc. $50,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
National City Bank of the Midwest $43,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Bank of America, N.A. $43,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
SunTrust Bank $43,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Calyon New York Branch $43,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Bank of Tokyo-Mitsubishi Trust Company $43,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Comerica Bank $35,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
The Bank of New York $30,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Bayerische Landesbank $30,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
UFJ Bank Limited $25,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Nordea Bank Finland plc $25,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
The Bank of Nova Scotia $25,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Fifth Third Bank, Eastern Michigan $15,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Mizuho Corporate Bank, Ltd. $15,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Banco Nazionale del Lavoro SPA - New York Branch $10,000,000
----------------------------------------------------- -----------------------------------------------------
----------------------------------------------------- -----------------------------------------------------
Total $900,000,000
----------------------------------------------------- -----------------------------------------------------
A-1-XV-1
EXHIBIT A-1
TO
CREDIT AGREEMENT
Eurocurrency Payment
Offices
------------------------------------------- -------------------------------------------------------------------------------
Agreed Currency Eurocurrency Payment Office
euro Bank One, NA London
London, England
Swift Address: XXXXXX0X
Account Number: 7170610EUR5001
Account Name: Bank One Loan Services
------------------------------------------- -------------------------------------------------------------------------------
Canadian Dollars* Royal Bank of Canada, Toronto
Swift: XXXXXXX0
For Acct: Bank One, Canada Branch
SWIFT: FNBCCATT
Transit No: 07172 Acct No: 000 047 1
For Further Cred to: ArvinMeritor
------------------------------------------- -------------------------------------------------------------------------------
------------------------------------------- -------------------------------------------------------------------------------
Sterling* XXXX Xxxx XXX - Xxxxxx
Xxxxxx, Xxxxxxx
SORT CODE: 40 05 15
SWIFT ADDRESS: XXXXXX00
Account Name: Bank One, London Branch
SORT CODE: 40 50 20
SWIFT ADDRESS: XXXXXX0X
For Futher Credit: Bank One N.A. Cayman Islands
Account Number: 701352GBP5001
------------------------------------------- -------------------------------------------------------------------------------
------------------------------------------- -------------------------------------------------------------------------------
Agreed Currency U.S. Dollar Payment Office
------------------------------------------- -------------------------------------------------------------------------------
------------------------------------------- -------------------------------------------------------------------------------
Dollars Bank One, NA
Xxxxxxx, Xxxxxxxx 00000
FED ABA: 071 000 013
Account Number: 4811-5286-0000
Account Name: Loan Processing DP
Account Address: 1 Bank Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, XX 00000-0000
------------------------------------------- -------------------------------------------------------------------------------
B-XV-3
B-XV-1
EXHIBIT B
TO
CREDIT AGREEMENT
Form of
Borrowing/Election Notice
TO: Bank One, NA (Main Office
Chicago), as the “Administrative Agent” under that certain Credit Agreement,
dated as of July [___], 2004, by and among
ArvinMeritor, Inc., an Indiana corporation (the “Company”),
the “Subsidiary Borrowers” from time to time parties thereto, the institutions
from time to time parties thereto as “Lenders”, the Administrative Agent,
JPMorgan Chase Bank and Citicorp North America, Inc., as Syndication Agents, and ABN AMRO
Bank N.V., BNP Paribas and UBS Securities LLC, as Documentation Agents (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”).
The
Company hereby gives to the Administrative Agent a Borrowing/Election Notice pursuant to
[Section 2.1]
[Section 2.2]
[Section 2.9] of the Credit
Agreement [on behalf of _____________________ (the
“Applicable Subsidiary
Borrower”)]1 and hereby requests to
borrow [on behalf of the Applicable Subsidiary
Borrower] on ______________ (the “Borrowing
Date”):
| (a) |
from the Lenders, on a pro rata basis, an aggregate principal Dollar Amount of
$_________ in Revolving Loans as: |
1. |_| a Floating Rate Advance (in Dollars)
2.
|_| a Eurocurrency Rate Advance with the following characteristics:
Interest Period of month(s)
Agreed Currency: [Dollars] [euro] [other]
(b)
from the Swing Line Bank a Swing Line Loan in the principal Dollar Amount of
$____________ as:
1. |_| a Floating Rate Advance (in Dollars)
2.
|_| a Swing Line Loan with the following characteristics:
Agreed Currency: [euro]
[Sterling] [Canadian Dollars] [other]
Agreed interest rate of ____% per annum
The
undersigned hereby certifies to the Administrative Agent and the Lenders that: (i) no
Default or Unmatured Default has occurred and is continuing on the date hereof or on the
Borrowing Date or will result from the making of the proposed Loans; (ii) the
representations and warranties of the undersigned contained in Article VI of the
Credit Agreement [(other than the representation and warranty set
forth in Section 6.5 of the Credit
Agreement)]2 are and shall be true and
correct in all material respects on and as of the date hereof and on and as of the
Borrowing Date (unless, on either such date, such representation and warranty is made as
of a specific date, in which case, such representation and warranty shall be true in all
material respects as of such date); (iii) [on and as of the date
hereof and on and as of the Borrowing Date, the Company has Single Investment Grade
Status; (iv)]3 the Dollar Amount of the Revolving Credit
Obligations does not, and after making the
Loan[s] requested herein would not, exceed the
Aggregate Revolving Loan Commitment; [(v)] the
Dollar Amount of the Revolving Credit Obligations denominated in Agreed Currencies other
than Dollars does not, and after making the
Loan[s] requested herein would not, exceed the
Foreign Currency Sublimit and [(vi)] all other
relevant conditions set forth in Article V of the Credit Agreement have been
satisfied.
Unless
otherwise defined herein, terms defined in the Credit Agreement shall have the same
meanings in this Borrowing/Election Notice.
Dated: ______________ ARVINMERITOR, INC.[, ON BEHALF OF
_______________________________], as the Company
By:________________________
Name:
Title:
C-3
C-1
EXHIBIT C
TO
CREDIT AGREEMENT
Form of Request for
Letter of Credit
|
TO: |
Bank One, NA (Main Office Chicago), as the “Administrative Agent” under that
certain Credit Agreement, dated as of July
[___], 2004, by and among ArvinMeritor, Inc., an
Indiana corporation (the “Company”), the “Subsidiary
Borrowers” from time to time parties thereto, the institutions from time to time
parties thereto as “Lenders”, the Administrative Agent, JPMorgan Chase Bank and
Citicorp North America, Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas
and UBS Securities LLC, as Documentation Agents (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”). |
Pursuant
to Section 3.4 of the Credit Agreement, the Company [on behalf
of __________________ (the “Applicable Subsidiary
Borrower”)]4 hereby gives to the
Issuing Bank a request for issuance of a Letter of Credit on behalf of
[the Company] [the
Applicable Subsidiary Borrower], for the benefit of
5,
in the Dollar Amount of $_________, with an effective date of ______________ (the
“Effective Date”) and an expiry date of ______________. The
Agreed Currency requested for such Letter of Credit is
[Dollars]
[euro]
[other].
[Insert or
attach any applicable instructions and /or conditions].
The
undersigned hereby certifies that: (i) no Default or Unmatured Default has occurred and is
continuing on the date hereof or on the Effective Date or will result from the issuance of
the requested Letter of Credit; (ii) the representations and warranties of the undersigned
contained in Article VI of the Credit Agreement [(other than
the representation and warranty set forth in Section 6.5 of the Credit
Agreement)]6 are and shall be true and correct in all
material respects on and as of the date hereof and on and as of the Effective Date
(unless, on either such date, such representation and warranty is made as of a specific
date, in which case, such representation and warranty shall be true in all material
respects as of such date); (iii) [on and as of the date hereof and on
and as of the Effective Date, the Company has Single Investment Grade Status;
(iv)]7 the Dollar Amount of the Revolving Credit
Obligations does not, and after issuing the Letter of Credit requested hereby would not,
exceed the Aggregate Revolving Loan Commitment;
[(v)] the Dollar Amount of the Revolving Credit
Obligations denominated in Agreed Currencies other than Dollars does not, and after
issuing the Letter of Credit requested hereby would not, exceed the Foreign Currency
Sublimit and [(vi)] all other relevant
conditions set forth in Section 3.4 and Article V of the Credit Agreement
have been satisfied.
Unless
otherwise defined herein, terms defined in the Credit Agreement shall have the same
meanings in this Request for Letter of Credit.
Dated: ______________ ARVINMERITOR, INC., [ON BEHALF OF ______________], as the
Company
By:________________________
Name:
Title:
X-0
X-0
EXHIBIT D
TO
CREDIT AGREEMENT
Form of Assignment
Agreement
This
Assignment Agreement (this “Assignment Agreement”) is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor]
(the “Assignor”) and [Insert
name of Assignee] (the
“Assignee”). Capitalized terms used but not defined herein
shall have the meanings given to them in the “Credit Agreement” identified
below, receipt of a copy of which is hereby acknowledged by the Assignee. The Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment Agreement as if set
forth herein in full.
For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,
subject to and in accordance with the Terms and Conditions and the Credit Agreement, as of
the Effective Date inserted by the Administrative Agent as contemplated below, the
interest in and to all of the Assignor’s rights and obligations in its capacity as a
Lender under the Credit Agreement and any other documents or instruments delivered
pursuant thereto that represents the amount and percentage interest identified below of
all of the Assignor’s outstanding rights and obligations under the respective
facilities identified below (including, without limitation, any letters of credit,
guaranties and swingline loans included in such facilities and, to the extent permitted to
be assigned under applicable law, all claims (including without limitation contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or
in equity), suits, causes of action and any other right of the Assignor against any Person
whether known or unknown arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby) (the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment Agreement, without representation or warranty by the Assignor.
1. Assignor:
---------------------------------------------------
2. Assignee: [and is an Affiliate/Approved
---------------------------------------------------
Fund of [identify Lender]]8
3. Company: ArvinMeritor, Inc.
---------------------------------------------------
4. Administrative Bank One, NA (Main Office Chicago), as the
Agent: Administrative Agent under the Credit Agreement
---------------------------------------------------
5. Credit Agreement The Credit Agreement, dated as of July [__], 2004, by and among ArvinMeritor, Inc., an
Indiana corporation (the "Company"), the "Subsidiary Borrowers" from time to time
parties thereto, the institutions from time to time parties thereto as "Lenders", Bank
One, NA (Main Office Chicago), as Administrative Agent, JPMorgan Chase Bank and
Citicorp North America, Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP
Paribas and UBS Securities LLC, as Documentation Agents (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit Agreement").
6. Assigned Interest:
----------------------------- --------------------------------- -------------------------- ----------------------------
Aggregate Dollar Amount of Dollar Amount of
Revolving Loan Commitment/Loans Revolving Loan Percentage Assigned of
for all Lenders* Commitment/Loans Revolving Loan
Facility Assigned Assigned* Commitment/Loans9
----------------------------- --------------------------------- -------------------------- ----------------------------
----------------------------- --------------------------------- -------------------------- ----------------------------
Revolving Loan Commitment $ $ _______%
----------------------------- --------------------------------- -------------------------- ----------------------------
----------------------------- --------------------------------- -------------------------- ----------------------------
6. Trade Date: 10
------------------------------------------------------------
Effective Date: ____________, 20__ [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE
DATE OF RECORDATION OF TRANSFER BY THE ADMINISTRATIVE AGENT.]
The terms set forth in this Assignment Agreement are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------------------
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------------------
Name:
Title:
[Consented to and]11 Accepted:
BANK ONE, NA (MAIN OFFICE CHICAGO), as Administrative
Agent
By: ___________________________
Name:
Title:
[Consented to:
ARVINMERITOR, INC., as the Company
By:
Name:
Title:]12
ANNEX 1
TERMS AND CONDITIONS
FOR
ASSIGNMENT AGREEMENT
1.
Representations and Warranties.
1.1
Assignor. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment Agreement and
to consummate the transactions contemplated hereby. Neither the Assignor nor any of its
officers, directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, perfection, priority, collectibility, or value
of the Loan Documents, (iii) the financial condition of the Company, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document,
(iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates
or any other Person of any of their respective obligations under any Loan Document, (v)
inspecting any of the property, books or records of the Company, or any guarantor, or (vi)
any mistake, error of judgment, or action taken or omitted to be taken in connection with
the Loans or the Loan Documents.
1.2.
Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment Agreement and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iii) agrees that its payment instructions
and notice instructions are as set forth in Schedule 1 to this Assignment
Agreement, (iv) none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are assets considered for
purposes of ERISA or Section 4975 of the Code to be assets of or on behalf of
any “plan” as defined in Section 3(3) of ERISA or Section 4975 of the
Code, regardless of whether subject to ERISA or Section 4975 of the Code, and
that its rights, benefits and interests in and under the Loan Documents will not
be “plan assets” under ERISA, (v) it is not relying on or looking to
any Margin Stock for repayment of the Loans and Reimbursement Obligations
provided for in the Credit Agreement, (vi) agrees to indemnify and hold the
Assignor harmless against all losses, costs and expenses (including, without
limitation, reasonable attorneys’ fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee’s
non-performance of the obligations assumed under this Assignment Agreement,
(vii) it has received a copy of the Credit Agreement, together with copies of
financial statements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement and to purchase the Assigned Interest on the basis of which
it has made such analysis and decision independently and without reliance on the
Administrative Agent or any other Lender, and (viii) attached as Schedule
1 to this Assignment Agreement is any documentation required to be delivered
by the Assignee with respect to its tax status pursuant to the terms of the
Credit Agreement, duly completed and executed by the Assignee and (b) agrees (i)
that it will, independently and without reliance on the Administrative Agent,
the Assignor or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents and (ii) that it will
perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
2.
Payments. The Assignee shall pay the Assignor, on the Effective Date, the
Dollar Amount agreed to by the Assignor and the Assignee. From and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
3.
General Provisions. This Assignment Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment Agreement may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment Agreement. This Assignment Agreement shall be governed by, and
construed in accordance with, the internal laws (including 735 ILCS Section
105/5-1 et seq. but otherwise without regard to the conflicts of law
provisions) of the State of Illinois.
SCHEDULE 1 – PART
I
ADMINISTRATIVE
QUESTIONNAIRE
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
| |
(For
Forms for Primary Syndication call Xxxxxxxx Xxxxxxx at 312-732-8844) (For Forms after
Primary Syndication call Xxx Xxxxx at 000-000-0000) |
SCHEDULE 1 – PART
II
U.S. AND NON-U.S. TAX
INFORMATION REPORTING REQUIREMENTS
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
| |
(For
Forms for Primary Syndication call Xxxxxxxx Xxxxxxx at 312-732-8844) (For Forms after
Primary Syndication call Xxx Xxxxx at 000-000-0000) |
E-1-1
EXHIBIT E-1
TO
CREDIT AGREEMENT
Form of Initial Loan
Parties’ U.S. Counsel Opinion
Attached.
E-2-1
EXHIBIT E-2
TO
CREDIT AGREEMENT
Form of Initial
Subsidiary Borrower’s Ireland Counsel’s Opinion
Attached.
F-1
EXHIBIT F
TO
CREDIT AGREEMENT
List of Closing Documents
Attached.
G-2
G-1
EXHIBIT G
TO
CREDIT AGREEMENT
Form of Compliance
Certificate13
Pursuant
to Section 7.1(A)(iii) of that certain Credit Agreement, dated as of July
[__], 2004, among ArvinMeritor, Inc., an Indiana
corporation (the “Company”), the “Subsidiary
Borrowers” from time to time parties thereto, the institutions from time to time
parties thereto as “Lenders”, Bank One, NA (Main Office Chicago), as
Administrative Agent, JPMorgan Chase Bank and Citicorp North America, Inc., as Syndication
Agents, and ABN AMRO Bank N.V., BNP Paribas and UBS Securities LLC, as Documentation
Agents (as the same may be amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”), the Company, through a
Designated Financial Officer, hereby delivers this Compliance Certificate (this
“Certificate”) to the Administrative Agent, together with
the financial statements being delivered to the Administrative Agent pursuant to
Section
7.1(A)[(i)][(ii)]
of the Credit Agreement for the accounting period as at, and for the periods ending on,
____________, ____ (the “Financial Statements”).
Capitalized terms used herein and in the Schedules attached hereto shall have the meanings
set forth in the Credit Agreement. Subsection references herein relate to subsections of
the Credit Agreement.
THE
UNDERSIGNED HEREBY CERTIFIES THAT:
15.1.
1. I am the duly appointed [_____________] of
the Company and constitute a Designated Financial Officer under (and as defined
in) the Credit Agreement.
15.2.
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.
15.3.
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default as of the date of this Certificate, except as set
forth below.
15.4.
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Company’s compliance with certain covenants and other
provisions of the Credit Agreement related to the information set forth on the
Financial Statements, all of which data and computations are true, complete and
correct and in conformity with Agreement Accounting Principles.
15.5.
5. Schedule II attached hereto sets forth the Xxxxx’x Rating
and S&P Rating of the Company.
15.6.
6. Schedule III attached hereto sets forth the various reports and
deliveries which are required under the Credit Agreement.
15.7.
7. The information set forth herein is accurate as of _____________, 20__, and
the Financial Statements delivered herewith fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries
at the dates indicated and the results of their operations and cash flows and
changes in their financial position for the periods ending on the date indicated
in conformity with Agreement Accounting Principles, consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes.
15.8.
8. Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
15.9.
The foregoing certifications,
together with the computations set forth in Schedule I hereto, the information
set forth in Schedule II hereto and the Financial Statements delivered with this
Certificate attached as Schedule III hereto in support hereof, are made and
delivered this _____ day of __________, 20___.
ARVINMERITOR, INC., as the Company
By:
Name:
Title:
SCHEDULE I TO
COMPLIANCE CERTIFICATE
Compliance as of
__________, _____
with certain provisions
of the Credit Agreement
The
computations set forth in this Schedule I are designed to facilitate the
calculation of financial covenants and certain other provisions in the Credit Agreement
relating to the information set forth in the Company’s consolidated financial
statements delivered with this Certificate. The computations set forth in this Schedule
I have been made in accordance with Agreement Accounting Principles which may not
conform with generally accepted accounting principles. The use of abbreviated terminology
and/or descriptions in the computations below are not in any way intended to override or
eliminate the more detailed descriptions for such computations set forth in the relevant
provisions of the Credit Agreement, all of which shall be deemed to control. In addition,
the failure to identify any specific provisions or terms of the Credit Agreement in this
Schedule I does not in any way affect their applicability during the periods
covered by such financial statements or otherwise, which shall in all cases be governed by
the Credit Agreement. For purposes of this Schedule I, the “Measurement
Quarter” shall be the fiscal quarter of the Company ending on the date set forth
above.
I. FINANCIAL COVENANTS
A. DEBT RATIO (Section 7.4(A))
1. Total Indebtedness (as of the end of the Measurement Quarter)
a. "Indebtedness" (as broadly defined in the Credit Agreement)
of the Company and its consolidated Subsidiaries14 $_________
b. minus Indebtedness in respect of the Preferred
Capital Securities - $_________
c. minus Foreign Factoring Transactions carveout
i. Receivables Facility Attributable
Indebtedness arising in connection with
Foreign Factoring Transactions $__________
ii. Maximum carveout $75,000,000
iii.Foreign Factoring Transactions carveout
(lesser of I.A.1.c.i. and I.A.1.c.ii.) - $_________
d. minus Permitted Receivables Financings carveout
i. Receivables Facility Attributable
Indebtedness arising in connection with
Permitted Receivables Financings $__________
ii. Maximum carveout $250,000,000
iii.Permitted Receivables Financings carveout
(lesser of I.A.1.d.i. and I.A.1.d.ii.) - $_________
e. minus the amount identified on the Company's
consolidated balance sheet as "cash and cash equivalents"
to the extent (i) such cash and cash equivalents are
unrestricted and (ii) such amount is greater than
$50,000,000 but less than $150,000,000 - $_________
f. = Total Indebtedness (sum of I.A.1.a. through I.A.1.e.) = $_________
2. EBITDA (for the four consecutive fiscal quarters then ending)
a. consolidated net income (or loss) of the Company
and its Subsidiaries $_________
b. plus Interest Expense (I.B.2.d.) + $_________
c. plus income taxes + $_________
d. plus depreciation expense + $_________
e. plus amortization expense + $_________
f. minus (plus) any extraordinary gains (losses) -/+ $_________
g. minus (plus) any special, non-recurring, non-cash gains
(charges) such as those arising out of the ongoing
restructuring or consolidation of the operations of the
Company and its Subsidiaries -/+ $_________
h. minus (plus) the cumulative effect of Accounting Changes
listed below and adopted after the Closing Date:
____________________________________________
____________________________________________ +/- $_________
i. = EBITDA (sum of I.A.2.a. through I.A.2.h.) = $_________
3. Debt Ratio (Ratio of I.A.1.f. to I.A.2.i.) ____ to 1.00
4. Maximum Debt Ratio 3.25 to 1.00 as of the end of each fiscal quarter
from the Closing Date through and including the
fiscal quarter ending March 31, 2007
3.00 to 1.00 as of the end of each fiscal quarter
ending after March 31, 200715
The Debt Ratio in I.A.3. shall not exceed the Maximum Debt Ratio in I.A.4.
B. MINIMUM FIXED CHARGE COVERAGE RATIO (Section 7.4(B))
1. FIXED CHARGES (for the four consecutive fiscal quarters then ending)
a. EBITDA (I.A.2.h.) $_________
b. minus Capital Expenditures as shown on the
statement of consolidated cash flows for the
applicable four-quarter period - $_________
c. minus to the extent not subtracted in I.B.1.b. above,
Capitalized Leases - $_________
d. = Fixed Charges (sum of I.B.1.a. through I.B.1.c.) = $_________
2. INTEREST EXPENSE (for the four consecutive fiscal quarters then ending)
a. consolidated interest expense of the Company
and its Subsidiaries $_________
b. minus interest income received by the Company and
its Subsidiaries from Investments - $_________
c. minus Receivables Facility Financing Costs
(to the extent constituting interest expense
in I.B.2.a. above) - $_________
d. = Interest Expense (sum of I.B.2.a. though I.B.2.c.) = $_________
3. Fixed Charge Coverage Ratio (Ratio of I.B.1.d. to I.B.2.d.) ____ to 1.00
4. Minimum Fixed Charge Coverage Ratio 1.50 to 1.00
The Fixed Charge Coverage Ratio in I.B.3. shall not be less than the Minimum Fixed Charge
Coverage Ratio in I.B.4.
II. ASSET SALES (Section 7.3(C))
A. TEST BASIS
1. Date of the first Asset Sale consummated after the
Closing Date ________________
2. Aggregate book value of the Company's Consolidated
Assets as of the end of the fiscal quarter immediately
preceding the above-referenced Asset Sale ________________
B. ANNUAL BASKET (for the fiscal year containing the Measurement Quarter)
1. 25.0% of the amount set forth in II.A.2. ________________
2. State whether the aggregate proceeds generated by all Asset
Sales of the Company and its Subsidiaries during the fiscal
year containing the Measurement Quarter exceed the
amount set forth in in II.B.1. Yes/No
C. CUMULATIVE BASKET (for the period from the Closing Date through the Measurement Quarter)
1. 40.0% of the amount set forth in II.A.2. ________________
2. State whether the aggregate proceeds generated by all Asset
Sales of the Company and its Subsidiaries since the Closing
Date exceed the amount set forth in II.C.1. Yes/No
The Administrative Agent may request a certificate of a Designated Financial Officer setting forth a
calculation (in detail reasonably satisfactory to the Administrative Agent) of the amount described in
each of Items II.B.2. and II.C.2. confirming the Company's statements in respect of
such Items.
III. CERTAIN OTHER MISCELLANEOUS BASKETS BASED ON FINANCIAL STATEMENTS
A. Material Domestic Subsidiary Classification (Definitions, Section 7.2(K)(i))16
1. 5.0% of the Company's Consolidated Assets as of the last day
of the Measurement Quarter $_________
2. 5.0% of the Company's Consolidated Sales for the Measurement
Quarter $_________
3. 5.0% of the Company's Consolidated Operating Profit for the
Measurement Quarter $_________
4. Identify on Exhibit A hereto each Domestic Subsidiary of the Company (a)(i) the total assets
(determined on a consolidated basis for such Subsidiary and its Subsidiaries) of which as of the last day of the
Measurement Quarter exceed the amount in III.A.1., (ii) the total sales (determined on a consolidated basis for
such Subsidiary and its Subsidiaries) of which for the Measurement Quarter exceed the amount in III.A.2. or (iii)
the total operating profits (determined on a consolidated basis for such Subsidiary and its Subsidiaries) of
which for the Measurement Quarter exceed the amount set forth in III.A.3. and (b) that is not a Subsidiary
Guarantor.
B. Additional Subsidiary Guarantors (Section 7.2(K)(ii))
1. Identify on Exhibit B hereto each Subsidiary of the Company that (i) guarantees any
Indebtedness of the Company other than the Obligations and (ii) is not a Subsidiary Guarantor.
The Administrative Agent may request a certificate of a Designated Financial Officer setting forth a complete
list of the existing and required Subsidiary Guarantors as of the end of any fiscal quarter and, to the extent
applicable as of such date, calculations (in detail reasonably satisfactory to the Administrative Agent)
confirming which Subsidiaries of the Company constitute Material Domestic Subsidiaries as of such date.
C. Non-Guarantor Subsidiary Indebtedness (Section 7.3(A))
1. 5.0% of the Company's Consolidated Assets as of the last day
of the fiscal quarter immediately preceding the Measurement Quarter $_________
2. State whether the amount of "Indebtedness" (as broadly defined in
the Credit Agreement) of Non-Guarantor Subsidiaries not otherwise
permitted under Section 7.3(A)(i) to (v) ("General Indebtedness")
exceeded the amount set forth in III.C.1. at any time during the
Measurement Quarter Yes/No
D. Investments (Section 7.3(E))
1. 7.5% of the Company's Consolidated Assets as of the last day
of the fiscal quarter immediately preceding the Measurement Quarter $_________
2. State whether the amount of Investments not otherwise permitted
under Section 7.3(E)(i) to (vii) ("General Investments")
exceeded the amount set forth in III.D.1. at any time during the
Measurement Quarter Yes/No
E. Liens (Section 7.3(F))
1. State whether the amount of Indebtedness secured by Liens not otherwise
permitted by Section 7.3(F)(i) to (xix) (the "General Lien Amount")
exceeded $50,000,000 at any time during the Measurement Quarter Yes/No
EXHIBIT A
TO
SCHEDULE 1 of
COMPLIANCE CERTIFICATE
New Material
Domestic Subsidiaries
EXHIBIT B
TO
SCHEDULE 1 of
COMPLIANCE CERTIFICATE
Additional
Subsidiary Guarantors
SCHEDULE II TO
COMPLIANCE CERTIFICATE
Ratings
| |
The
rating now in effect with respect to the Company’s senior unsecured long-term debt
securities without third-party credit enhancement is: |
________ from Xxxxx'x
________ from S&P
SCHEDULE III TO
COMPLIANCE CERTIFICATE
Reports and
Deliveries
Attached.
15
EXHIBIT H
TO
CREDIT AGREEMENT
Form of Subsidiary
Guaranty
SUBSIDIARY GUARANTY
THIS
SUBSIDIARY GUARANTY (as the same may be amended, restated, supplemented or otherwise
modified from time to time, this “Guaranty”) is made as of
July 6, 2004, by ArvinMeritor OE, LLC, a Delaware limited liability company, Meritor Heavy
Vehicle Systems, LLC, a Delaware limited liability company, Purolator Products NA, Inc., a
Delaware corporation, and Purolator Products Company, a Delaware corporation (each an
“Initial Guarantor”, and together with any additional
Subsidiaries which become parties to this Guaranty by executing a Supplement hereto in the
form attached hereto as Annex I, the “Guarantors”),
in favor of Bank One, NA (Main Office Chicago), as the “Administrative Agent”
for the benefit of itself, the “Lenders” and the other “Holders of
Obligations” (in each case, under and as defined in the “Credit Agreement”
described below). Each capitalized term used herein and not defined herein shall have the
meaning ascribed thereto in the Credit Agreement.
WITNESSETH:
WHEREAS,
ArvinMeritor, Inc., an Indiana corporation (the “Company”),
has entered into that certain Credit Agreement, dated as of July 6, 2004 (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), by and among the Company, ArvinMeritor
Finance Ireland Ltd., a company organized under the laws of Ireland, and the other
“Subsidiary Borrowers” from time to time parties thereto (together with the
Company, the “Borrowers”), the financial institutions from
time to time parties thereto as “Lenders”, the Administrative Agent, JPMorgan
Chase Bank and Citicorp North America, Inc., as Syndication Agents, and ABN AMRO Bank
N.V., BNP Paribas and UBS Securities LLC, as Documentation Agents, which Credit Agreement
provides, subject to the terms and conditions of the Credit Agreement, for extensions of
credit and other financial accommodations by the Lenders to the Borrowers;
WHEREAS,
it is a condition precedent to the extensions of credit by the Lenders under the Credit
Agreement that each of the “Subsidiary Guarantors” (under and as defined in the
Credit Agreement, and constituting all Material Domestic Subsidiaries and certain other
Subsidiaries of the Company required to execute a Guaranty pursuant to Section
7.2(K) of the Credit Agreement) execute and deliver a Guaranty, whereby each of the
Subsidiary Guarantors, without limitation and with full recourse, shall guarantee the
payment when due of all Obligations, including, without limitation, all principal,
interest, letter of credit reimbursement obligations and other amounts that shall be at
any time payable by the Borrowers under the Credit Agreement or the other Loan Documents
and all Hedging Obligations owing by the Company under Guaranteed Hedging Agreements (all
Guaranteed Hedging Agreements and the Loan Documents being referred to herein collectively
as the “Transaction Documents”); and
WHEREAS,
in consideration of the direct and indirect financial and other support that the Borrowers
have provided, and such direct and indirect financial and other support as the Borrowers
may in the future provide, to the Guarantors, and in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, each of the Guarantors is willing
to guarantee the Obligations under the Credit Agreement and the other Transaction
Documents;
NOW,
THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE XVI:
Representations, Warranties and Covenants. In order to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to make the Loans and the
other financial accommodations to the Borrowers and to issue the Letters of Credit
described in the Credit Agreement, each of the Guarantors represents and warrants to each
Lender and the Administrative Agent as of the date of this Guaranty, giving effect to the
consummation of the transactions contemplated by the Transaction Documents on the Closing
Date (which representations and warranties shall be deemed to have been renewed on each
date the representations and warranties set forth in Article VI of the Credit
Agreement are made as required by Section 5.2 thereof):
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(A) |
It is a corporation, partnership, limited liability company or other
organization duly incorporated or organized, validly existing and in good
standing (in jurisdictions where applicable) under the laws of its jurisdiction
of incorporation or organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted and where the
failure to be in good standing or authorized to conduct business would have a
Material Adverse Effect. |
| |
(B) |
It has the corporate or other power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance of its obligations
hereunder have been duly authorized by proper corporate, partnership or limited
liability company proceedings, and this Guaranty constitutes a legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally. |
| |
1. |
Neither the execution and delivery by it of this Guaranty, nor the consummation
of the transactions herein contemplated, nor compliance with the provisions
hereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on such Guarantor or such Guarantor’s
articles of incorporation or by-laws or comparable constitutive documents or the
provisions of any indenture, instrument or agreement to which such Guarantor is
a party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or imposition
of any Lien (other than any Lien permitted by Section 7.3(F) of the
Credit Agreement) in, of or on the Property of such Guarantor pursuant to the
terms of any such indenture, instrument or agreement, except for any such
violation, conflict or default as would not reasonably be expected to have a
Material Adverse Effect. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, any
Governmental Authority, or any other third party, is required to authorize, or
is required in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, this Guaranty. |
ARTICLE XVII: The
Guaranty. Each of the Guarantors hereby unconditionally guarantees, jointly and
severally with the other Guarantors, the full and punctual payment and performance when
due (whether at stated maturity, upon acceleration or otherwise) of the Obligations,
including, without limitation, (i) the principal of and interest on each Advance made to
the Borrowers pursuant to the Credit Agreement, (ii) any Reimbursement Obligations of the
Borrowers or the performance by the Borrowers of such Reimbursement Obligations, (iii) all
other amounts payable by the Borrowers under the Credit Agreement and the other
Transaction Documents, and (iv) the punctual and faithful performance, keeping,
observance, and fulfillment by the Borrowers of all of the agreements, conditions,
covenants, and obligations of the Borrowers contained in the Transaction Documents (all of
the foregoing being referred to collectively as the “Guaranteed
Obligations”). Upon failure by any Borrower to pay punctually any such
amount or perform such obligation, each of the Guarantors agrees that it shall forthwith
on demand pay such amount or perform such obligation at the place and in the manner
specified in the Credit Agreement or the relevant Transaction Document, as the case may
be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable
and unconditional guaranty of payment and is not a guaranty of collection.
ARTICLE XVIII: Guaranty
Unconditional. The obligations of each Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
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(i) |
any extension, renewal, settlement, indulgence, compromise, waiver or release of
or with respect to the Guaranteed Obligations or any part thereof or any
agreement relating thereto, or with respect to any obligation of any other
guarantor of any of the Guaranteed Obligations, whether (in any such case) by
operation of law or otherwise, or any failure or omission to enforce any right,
power or remedy with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto, or with respect to any obligation of any
other guarantor of any of the Guaranteed Obligations; |
| |
(ii) |
any modification or amendment of or supplement to the Credit Agreement or any
other Transaction Document, including, without limitation, any such amendment
which may increase the amount of, or the interest rates applicable to, any of
the Guaranteed Obligations guaranteed hereby; |
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(iii) |
any change in the corporate, partnership, limited liability company or other
existence, structure or ownership of any Borrower, such Guarantor or any other
guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Borrower, such
Guarantor or any other guarantor of the Guaranteed Obligations, or any of their
respective assets or any resulting release or discharge of any obligation of any
Borrower, such Guarantor or any other guarantor of any of the Guaranteed
Obligations; |
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(iv) |
the existence of any claim, setoff or other rights which the Guarantors may have
at any time against any Borrower, any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Holder of Obligations or any other
Person, whether in connection herewith or in connection with any unrelated
transactions; provided, that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim; |
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(v) |
the enforceability or validity of the Guaranteed Obligations or any part thereof
or the genuineness, enforceability or validity of any agreement relating thereto
or with respect to the collateral, if any, securing the Guaranteed Obligations
or any part thereof, or any other invalidity or unenforceability relating to or
against any Borrower, such Guarantor or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit Agreement, any
other Transaction Document or any provision of applicable law or regulation
purporting to prohibit the payment of any of the Guaranteed Obligations by any
Borrower, such Guarantor or any other guarantor of the Guaranteed Obligations; |
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(a) |
the failure of the Administrative Agent to take any steps to perfect and
maintain any security interest in, or to preserve any rights to, any security or
collateral for the Guaranteed Obligations, if any; |
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(b) |
the election by, or on behalf of, any one or more of the Holders of Obligations,
in any proceeding instituted under Title 11 of the United States Code (11 U.S.C.
101 et seq.) (the “Bankruptcy Code”), of the
application of Section 1111(b)(2) of the Bankruptcy Code; |
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(c) |
any borrowing or grant of a security interest by any Borrower, such Guarantor or
any other guarantor of the Guaranteed Obligations as debtor-in-possession, under
Section 364 of the Bankruptcy Code; |
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(d) |
the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Holders of Obligations or the Administrative Agent
for repayment of all or any part of the Guaranteed Obligations; |
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(e) |
the failure of any other guarantor to sign or become party to this Guaranty or
any amendment, change, or reaffirmation hereof; |
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(f) |
any other act or omission to act or delay of any kind by any Borrower, such
Guarantor, any other guarantor of the Guaranteed Obligations, the Administrative
Agent, any Holder of Obligations or any other Person or any other circumstance
whatsoever which might, but for the provisions of this Section 3,
constitute a legal or equitable discharge of any Guarantor’s obligations
hereunder; or |
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(vi) |
any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the
Guaranteed Obligations or any part thereof, any other guaranties with respect to
the Guaranteed Obligations or any part thereof, or any other obligation of any
person or entity with respect to the Guaranteed Obligations or any part thereof,
or any nonperfection or invalidity of any direct or indirect security for the
Guaranteed Obligations. |
ARTICLE XIX: Discharge
Only Upon Payment In Full; Reinstatement In Certain Circumstances. Subject to any
prior release herefrom of any Guarantor by the Administrative Agent in accordance with
(and pursuant to authority granted to the Administrative Agent under) the terms of the
Credit Agreement, each Guarantor’s obligations hereunder shall remain in full force
and effect until all of the Guaranteed Obligations shall have been indefeasibly paid in
full in cash and the Revolving Loan Commitments, the Swing Line Commitment and all Letters
of Credit issued under the Credit Agreement (and obligations to issue the same) shall have
terminated or expired, and all other financing arrangements among the Borrowers or any
Guarantor and the Holders of Obligations under or in connection with the Credit Agreement,
each Guaranteed Hedging Agreement and each other Transaction Document shall have
terminated (herein, the “Termination Conditions”), and
until the prior and complete satisfaction of the Termination Conditions all of the rights
and remedies under this Agreement and the other Transaction Documents shall survive. If at
any time any payment of the principal of or interest on any Advance or Reimbursement
Obligation or any other amount payable by any Borrower or any other party under the Credit
Agreement or any other Transaction Document is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
each Guarantor’s obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
ARTICLE XX: General
Waivers; Additional Waivers.
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(A) |
General Waivers. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand or action on delinquency, protest, the benefit of any
statutes of limitations and, to the fullest extent permitted by law, any notice
not provided for herein, as well as any requirement that at any time any action
be taken by any Person against any Borrower, such Guarantor, any other guarantor
of the Guaranteed Obligations or any other Person. |
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(B) |
Additional Waivers. Notwithstanding anything herein to the contrary, each
of the Guarantors hereby absolutely, unconditionally, knowingly, and expressly
waives: |
| |
(i) |
any right it may have to revoke this Guaranty as to future indebtedness or
notice of acceptance hereof; |
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(g) |
(A) notice of acceptance hereof; (B) notice of any Loans, Letters of Credit or
other financial accommodations made or extended under the Transaction Documents
or the creation or existence of any Guaranteed Obligations; (C) notice of
the amount of the Guaranteed Obligations, subject, however, to each
Guarantor’s right to make inquiry of the Administrative Agent and the
Holders of Obligations to ascertain the amount of the Guaranteed Obligations at
any reasonable time; (D) notice of any adverse change in the financial
condition of any Borrower or of any other fact that might increase such
Guarantor’s risk hereunder; (E) notice of presentment for payment,
demand, protest, and notice thereof as to any instruments among the Transaction
Documents; (F) notice of any Unmatured Default or Default; and (G) all
other notices (except if such notice is specifically required to be given to
such Guarantor hereunder or under the Transaction Documents) and demands to
which each Guarantor might otherwise be entitled; |
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(h) |
its right, if any, to require the Administrative Agent and the Holders of
Obligations to institute suit against, or to exhaust any rights and remedies
which the Administrative Agent and the Holders of Obligations now have or may
hereafter have against, any other guarantor of the Guaranteed Obligations or any
third party, or against any collateral provided by such other guarantors or any
third party; and each Guarantor further waives any defense arising by reason of
any disability or other defense (other than the defense that the Guaranteed
Obligations shall have been fully and finally performed and indefeasibly paid)
of any other guarantor of the Guaranteed Obligations or by reason of the
cessation from any cause whatsoever of the liability of any other guarantor of
the Guaranteed Obligations in respect thereof; |
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(i) |
(A) any rights to assert against the Administrative Agent and the Holders of
Obligations any defense (legal or equitable), set-off, counterclaim, or claim
which such Guarantor may now or at any time hereafter have against any other
guarantor of the Guaranteed Obligations or any third party liable to the
Administrative Agent and the Holders of Obligations; (B) any defense, set-off,
counterclaim or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity or
enforceability of the Guaranteed Obligations or any security therefor; (C) any
defense such Guarantor has to performance hereunder, and any right such
Guarantor has to be exonerated, arising by reason of: (1) the impairment or
suspension of the Administrative Agent’s and the Holders of
Obligations’ rights or remedies against any other guarantor of the
Guaranteed Obligations; (2) the alteration by the Administrative Agent and the
Holders of Obligations of the Guaranteed Obligations; (3) any discharge of the
obligations of any other guarantor of the Guaranteed Obligations to the
Administrative Agent and the Holders of Obligations by operation of law as a
result of the Administrative Agent’s and the Holders of Obligations’
intervention or omission; or (4) the acceptance by the Administrative Agent and
the Holders of Obligations of anything in partial satisfaction of the Guaranteed
Obligations; and (D) the benefit of any statute of limitations affecting such
Guarantor’s liability hereunder or the enforcement thereof, and any act
which shall defer or delay the operation of any statute of limitations
applicable to the Guaranteed Obligations shall similarly operate to defer or
delay the operation of such statute of limitations applicable to such
Guarantor’s liability hereunder; and |
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(j) |
any defense arising by reason of or deriving from (a) any claim or defense based
upon an election of remedies by the Administrative Agent and the other Holders
of Obligations; or (b) any election by the Administrative Agent and the other
Holders of Obligations under Section 1111(b) of the Bankruptcy Code to limit the
amount of, or any collateral securing, its claim against the Guarantors. |
ARTICLE XXI:
Subrogation; Subordination of Intercompany Indebtedness.
(A)
Subrogation. Until the prior and complete satisfaction of all Termination
Conditions, each Guarantor, (i) shall have no right of subrogation with respect
to such Guaranteed Obligations and (ii) waives any right to enforce any remedy
which the Holders of Obligations or the Administrative Agent now have or may
hereafter have against any Borrower, any endorser or any other guarantor of all
or any part of the Guaranteed Obligations or any other Person, and each
Guarantor waives any benefit of, and any right to participate in, any security
or collateral that may from time to time be given to the Holders of Obligations
and the Administrative Agent to secure the payment or performance of all or any
part of the Guaranteed Obligations or any other liability of the Borrowers to
the Holders of Obligations. Should any Guarantor have the right, notwithstanding
the foregoing, to exercise its subrogation rights prior to complete satisfaction
of the Termination Conditions, each Guarantor hereby expressly and irrevocably
(A) subordinates any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set-off that such
Guarantor may have to prior and complete satisfaction of the Termination
Conditions, and (B) waives any and all defenses available to a surety, guarantor
or accommodation co-obligor until all Termination Conditions are satisfied in
full. Each Guarantor acknowledges and agrees that this subordination is intended
to benefit the Administrative Agent and the Holders of Obligations and shall not
limit or otherwise affect such Guarantor’s liability hereunder or the
enforceability of this Guaranty, and that the Administrative Agent, the Holders
of Obligations and their respective successors and assigns are intended third
party beneficiaries of the waivers and agreements set forth in this Section
6(a).
(B)
Subordination of Intercompany Indebtedness. Each Guarantor agrees that
all Intercompany Indebtedness held by such Guarantor shall be subordinate and
subject in right of payment to the prior payment, in full and in cash, of all
Guaranteed Obligations and the satisfaction of all other Termination Conditions;
provided, that, and not in contravention of the foregoing, so long as no
Default has occurred and is continuing such Guarantor may make loans to and
receive payments in the ordinary course with respect to such Intercompany
Indebtedness from the related obligor. Should any payment, distribution,
security or instrument or proceeds thereof be received by such Guarantor upon or
with respect to the Intercompany Indebtedness in contravention of the Credit
Agreement or after the occurrence of a Default, including, without limitation,
an event described in Section 8.1(F) or (G) of the Credit
Agreement, prior to the satisfaction of all of the Termination Conditions, such
Guarantor shall receive and hold the same in trust, as trustee, for the benefit
of the Holders of Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Obligations, in
precisely the form received (except for the endorsement or assignment of such
Guarantor where necessary), for application to any of the Guaranteed
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by such Guarantor as the property of the Holders of Obligations. If any
Guarantor fails to make any such endorsement or assignment to the Administrative
Agent, the Administrative Agent or any of its officers or employees are
irrevocably authorized to make the same. Each Guarantor agrees that until the
prior and complete satisfaction of all Termination Conditions, no Guarantor will
assign or transfer to any Person any Intercompany Indebtedness.
ARTICLE XXII:
Contribution with Respect to Guaranteed Obligations.
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(A) |
To the extent that any Guarantor shall make a payment under this Guaranty (a
“Guarantor Payment”) which, taking into account
all other Guarantor Payments then previously or concurrently made by any other
Guarantor, exceeds the amount which otherwise would have been paid by or
attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same
proportion as such Guarantor’s “Allocable Amount” (as defined
below) (as determined immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of each of the Guarantors as determined immediately
prior to the making of such Guarantor Payment, then, following the prior
and complete satisfaction of the Termination Conditions, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro
rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment. |
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(B) |
As of any date of determination, the “Allocable
Amount” of any Guarantor shall be equal to the maximum
amount of the claim which could then be recovered from such Guarantor under this
Guaranty without rendering such claim voidable or avoidable under Section 548 of
the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer
Act, Uniform Fraudulent Conveyance Act or similar statute or common law. |
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2. |
This Section 7 is intended only to define the relative rights of the
Guarantors, and nothing set forth in this Section 7 is intended to or
shall impair the obligations of the Guarantors, jointly and severally, to pay
any amounts as and when the same shall become due and payable in accordance with
the terms of this Guaranty. |
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3. |
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor or Guarantors
to which such contribution and indemnification is owing. |
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4. |
The rights of the indemnifying Guarantors against other Guarantors under this
Section 7 shall be exercisable upon the prior and complete satisfaction
of the Termination Conditions. |
ARTICLE XXIII: Stay of
Acceleration. If acceleration of the time for payment of any amount payable by any
Borrower under the Credit Agreement or any other Transaction Document is stayed upon the
insolvency, bankruptcy or reorganization of any Borrower at any time while this Guaranty
is in effect, all such amounts otherwise subject to acceleration under the terms of the
Credit Agreement or any other Transaction Document shall nonetheless be payable by each of
the Guarantors hereunder forthwith on demand by the Administrative Agent.
ARTICLE XXIV:
Notices. All notices, requests and other communications to any party hereunder
shall be given in the manner prescribed in Article XIV of the Credit Agreement,
with respect to the Administrative Agent at its notice address therein and with respect to
any Guarantor at the address set forth below or such other address or telecopy number as
such party may hereafter specify for such purpose by notice to the Administrative Agent in
accordance with the provisions of such Article XIV.
Notice Address for Guarantors:
c/o ArvinMeritor, Inc.
0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Telephone No.: 000 000-0000
Facsimile No.: 000 000-0000
ARTICLE XXV: No
Waivers. No failure or delay by the Administrative Agent or any Holder of Obligations
in exercising any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies
provided in this Guaranty, the Credit Agreement and the other Transaction Documents shall
be cumulative and not exclusive of any rights or remedies provided by law.
ARTICLE XXVI:
Successors and Assigns. This Guaranty is for the benefit of the Administrative
Agent and the Holders of Obligations and their respective successors and permitted
assigns. In the event of an assignment of any amounts payable under the Credit Agreement
or the other Transaction Documents in accordance with the respective terms thereof, the
rights hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness; provided, that any rights hereunder applicable
to Hedging Obligations arising under Guaranteed Hedging Agreements may be assigned only to
the extent such Hedging Obligations are assigned to a Lender or an Affiliate of any
Lender. This Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns; provided, that no Guarantor shall have any right to assign
its rights or obligations hereunder without the consent of all of the Lenders, and any
such assignment in violation of this Section 11 shall be null and void.
ARTICLE XXVII: Changes
in Writing. Other than in connection with the addition of an additional Subsidiary,
which shall become a party hereto by executing a Supplement hereto in the form attached as
Annex I, and subject to Section 11.15(B) of the Credit Agreement, this
Guaranty and any provision hereof may be changed, waived, discharged or terminated only in
a writing signed by each of the Guarantors and the Administrative Agent with the consent
of the Required Lenders under the Credit Agreement (or all of the Lenders if required
pursuant to the terms of Section 9.3 of the Credit Agreement).
ARTICLE XXVIII: GOVERNING
LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND THE ADMINISTRATIVE AGENT OR ANY HOLDER
OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG SUCH GUARANTOR, THE ADMINISTRATIVE AGENT AND THE HOLDERS OF
OBLIGATIONS IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING 735 ILCS SECTION 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
ARTICLE XXIX: CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A)
NON-EXCLUSIVE JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, AND EACH
GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT OR ANY HOLDER OF OBLIGATIONS TO BRING PROCEEDINGS AGAINST ANY GUARANTOR IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY GUARANTOR
AGAINST THE ADMINISTRATIVE AGENT OR ANY HOLDER OF OBLIGATIONS OR ANY AFFILIATE
OF THE ADMINISTRATIVE AGENT OR ANY HOLDER OF OBLIGATIONS INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
(B)
SERVICE OF PROCESS. EACH GUARANTOR WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS,
PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY
THE ADMINISTRATIVE AGENT OR ANY HOLDER OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO SUCH GUARANTOR ADDRESSED AS PROVIDED HEREIN. NOTHING
HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE ADMINISTRATIVE
AGENT OR ANY HOLDER OF OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES
IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(C)
WAIVER OF JURY TRIAL. EACH GUARANTOR AND THE ADMINISTRATIVE
AGENT, FOR ITSELF AND FOR THE HOLDERS OF OBLIGATIONS, IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH GUARANTOR AND THE
ADMINISTRATIVE AGENT, FOR ITSELF AND FOR THE HOLDERS OF OBLIGATIONS, AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY GUARANTOR, THE ADMINISTRATIVE AGENT
OR ANY HOLDER OF OBLIGATIONS MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH PARTIES TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
ARTICLE XXX: No Strict
Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Guaranty. In the event an ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Guaranty.
ARTICLE XXXI: Taxes;
Expenses of Enforcement, Etc.
(A)
Taxes. Each Guarantor agrees to be bound by the terms and provisions of
Section 2.14(E) of the Credit Agreement (including, without limitation,
the promises made and the obligations accepted by the Borrowers therein), as if
each reference in such Sections (i) to any “Borrower” were a reference
to such Guarantor, (ii) to the Credit Agreement (including any reference to
“this Agreement”, “hereunder”, “hereof”,
“herein” or words of like import referring thereto) were a reference
to this Guaranty, and (iii) to any “Lender” or the “Lenders”
were a reference to any “Holder of Obligations” or the “Holders
of Obligations”.
(B)
Expenses of Enforcement, Etc. Subject to the terms of the Credit
Agreement, the Required Lenders shall have the right at any time after the
occurrence and during the continuance of a Default to direct the Administrative
Agent to commence enforcement proceedings with respect to the Guaranteed
Obligations. In addition to guaranteeing the Borrowers’ expense
reimbursement and indemnification obligations described in Section 10.7
of the Credit Agreement (and without limiting the same), the Guarantors agree to
reimburse the Administrative Agent and the Holders of Obligations for any
reasonable costs and out-of-pocket expenses (including reasonable
attorneys’ and paralegals’ fees and time charges of outside counsel
and paralegals for the Administrative Agent and the Holders of Obligations),
paid or incurred by the Administrative Agent or any Holder of Obligations in
connection with the collection and enforcement of amounts due under this
Guaranty.
ARTICLE XXXII:
Setoff. At any time after the occurrence and during the continuance of a
Default, each Holder of Obligations and the Administrative Agent may, without notice to
any Guarantor and regardless of the acceptance of any security or collateral for the
payment hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations then due and payable (by acceleration or otherwise) (i) any
indebtedness due or to become due from such Holder of Obligations or the Administrative
Agent to any Guarantor, and (ii) any moneys, credits or other property belonging to
any Guarantor, at any time held by or coming into the possession of such Holder of
Obligations or the Administrative Agents.
ARTICLE XXXIII:
Financial Information. Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Borrowers, the other Guarantors and any
and all endorsers and/or other guarantors of all or any part of the Guaranteed
Obligations, and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal, and each
Guarantor hereby agrees that none of the Holders of Obligations or the Administrative
Agent shall have any duty to advise such Guarantor of information known to any of them
regarding such condition or any such circumstances. In the event any Holder of Obligations
or the Administrative Agent, in its sole discretion, undertakes at any time or from time
to time to provide any such information to a Guarantor, such Holder of Obligations or the
Administrative Agent shall be under no obligation (i) to undertake any investigation not a
part of its regular business routine, (ii) to disclose any information which such Holder
of Obligations or the Administrative Agent, pursuant to accepted or reasonable commercial
finance or banking practices, wishes to maintain confidential, (iii) to make any other or
future disclosures of such information or any other information to such Guarantor or (iv)
to provide any such information to any other Guarantor.
ARTICLE XXXIV:
Severability. Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this Guaranty.
| |
II. |
Merger. This Guaranty represents the final agreement of each of the
Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Guarantor and any Holder of Obligations
or the Administrative Agent. |
| |
III. |
Headings. Section headings in this Guaranty are for convenience of
reference only and shall not govern the interpretation of any provision
of this Guaranty. |
| |
IV. |
Counterparts. This Guaranty may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Guaranty by signing
any such counterpart. |
The
remainder of this page is intentionally blank.
Signature Page to
Steelcase Guaranty
SIGNATURE PAGE TO SUBSIDIARY
GUARANTY
IN
WITNESS WHEREOF, the Initial Guarantors have caused this Guaranty to be duly executed by
its authorized officer as of the day and year first above written.
ArvinMeritor OE, LLC
By: ___________________________
Name:
Title:
Meritor Heavy Vehicle Systems, LLC
By: ___________________________
Name:
Title:
purolator products na, inc.
By: ___________________________
Name:
Title:
purolator products COMPANY
By: ___________________________
Name:
Title:
Acknowledged this ___ day of July,
2004 BANK ONE, NA (MAIN OFFICE CHICAGO), as Administrative Agent
By:
___________________________Name:
Ric HuttenlocherTitle:
Managing Director
H-1
ANNEX I TO GUARANTY
Reference
is hereby made to the Subsidiary Guaranty (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the
“Guaranty”), dated as of July 6, 2004, made by ArvinMeritor
OE, LLC, a Delaware limited liability company, Meritor Heavy Vehicle Systems, LLC, a
Delaware limited liability company, Purolator Products NA, Inc., a Delaware corporation,
and Purolator Products Company, a Delaware corporation (each an “Initial
Guarantor”, and together with any additional Subsidiaries which become
parties to this Guaranty by executing a Supplement hereto in the form attached hereto as
Annex I, the “Guarantors”), in favor of Bank One, NA
(Main Office Chicago), as the Administrative Agent for the benefit of itself, the Lenders
and the other Holders of Obligations (in each case, under and as defined in the Credit
Agreement). Each capitalized term used herein and not defined herein shall have the
meaning given to it in the Guaranty.
By
its execution below, the undersigned, [NAME OF NEW
GUARANTOR], a [corporation]
[partnership] [limited
liability company], agrees to become, and does hereby become, a
Guarantor under the Guaranty and agrees to be bound by such Guaranty as if originally a
party thereto. By its execution below, the undersigned represents and warrants as to
itself that all of the representations and warranties contained in Section 1 of the
Guaranty are true and correct in all respects as of the date hereof.
IN
WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a
[corporation]
[partnership] [limited
liability company] has executed and delivered this Annex I
counterpart to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By: ___________________________
Name:
Title:
I-2
I-1
EXHIBIT I
TO
CREDIT AGREEMENT
Form of Revolving Loan
Note
[_________], 20[__]
[ARVINMERITOR,
INC., an Indiana corporation (the “Company”)]
[NAME OF APPLICABLE SUBSIDIARY BORROWER (the “Applicable
Subsidiary Borrower”)], promises to pay to the
order of __________________ (the “Lender”) the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
[Company] [Applicable
Subsidiary Borrower] pursuant to Article II of the
below-described Credit Agreement. Such payments shall be made in immediately available
funds on the dates and at the offices of Bank One, NA (Main Office Chicago), as
Administrative Agent, specified in the Credit Agreement, together with interest on the
unpaid principal amount thereof at the rates and on the dates determined in accordance
with the Credit Agreement. The [Company]
[Applicable Subsidiary Borrower] shall pay the
principal of and accrued and unpaid interest on the Revolving Loans in full on the
Termination Date and as otherwise set forth in the Credit Agreement.
The
Lender shall, and is hereby authorized to, record on the schedule attached hereto, or
otherwise record in accordance with its usual practice, the date and amount of each
Revolving Loan and the date and amount of each principal payment hereunder.
This
Revolving Loan Note (this “Note”) is one of the promissory
notes issued pursuant to, and is entitled to the benefits of, the Credit Agreement, dated
as of July [__], 2004, by and among
[the Company, the] [ArvinMeritor, Inc., an
Indiana corporation, the Applicable Subsidiary Borrower, the other]
“Subsidiary Borrowers” from time to time parties thereto, the institutions from
time to time parties thereto as “Lenders”, Bank One, NA (Main Office Chicago),
as Administrative Agent, JPMorgan Chase Bank and Citicorp North America, Inc., as
Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas and UBS Securities LLC, as
Documentation Agents (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), to
which reference is hereby made for a statement of the terms and conditions governing this
Note, including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Each capitalized term used herein and not defined herein shall
have the meaning ascribed thereto in the Credit Agreement. The Credit Agreement, among
other things, provides for the making of Revolving Loans by the Lender to the Borrowers
(including the [Company]
[Applicable Subsidiary Borrower]) from time to
time in an aggregate amount not to exceed at any time outstanding such Lender’s
Revolving Loan Commitment.
The
[Company] [Applicable
Subsidiary Borrower] hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such rights.
This
Note shall be governed by, and construed in accordance with, the internal laws (including
735 ILCS Section 105/5-1 et seq. but otherwise without regard to the conflicts of
law provisions) of the State of Illinois, but giving effect to applicable federal laws.
[ARVINMERITOR, INC.] [NAME OF APPLICABLE SUBSIDIARY
BORROWER], as the [Company] [Applicable Subsidiary
Borrower]
By:
Name:
Title:
Revolving Loan and
Principal Payment Schedule
to
[ArvinMeritor, Inc.] [Name of Applicable Subsidiary Borrower] Revolving Loan Note
-------------------- ------------------------- -------------------------- ------------------------- ------------------
Principal Amount of Maturity of Interest Principal Amount Paid Unpaid Balance
Date Revolving Loan Period
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J-2
J-1
EXHIBIT J
TO
CREDIT AGREEMENT
Form of Assumption
Letter
[Date]
To the Administrative
Agent and the Lendersparty
to the Credit Agreementreferred
to below
Ladies and Gentlemen:
Reference
is made to that certain Credit Agreement, dated as of July
[__], 2004, among ArvinMeritor, Inc., an Indiana
corporation (the “Company”), the undersigned (upon the
effectiveness of this Assumption Letter and the satisfaction of certain other conditions),
the other “Subsidiary Borrowers” from time to time parties thereto, the
institutions from time to time parties thereto as “Lenders”, Bank One, NA (Main
Office Chicago), as Administrative Agent, JPMorgan Chase Bank and Citicorp North America,
Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas and UBS Securities LLC,
as Documentation Agents (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”).
Capitalized terms used but not defined herein shall have the meanings given to them in the
Credit Agreement.
The
undersigned, [_____________],
a[n] [__________
corporation/limited liability company/partnership]
[company organized under the laws of
[_____________]] (the “New
Subsidiary Borrower”), wishes to become a “Subsidiary Borrower”
under and as defined in the Credit Agreement, and accordingly hereby agrees that, subject
to the satisfaction of the conditions set forth in Section 2.23 and 5.3 of
the Credit Agreement, from the date hereof it shall become a “Subsidiary
Borrower” under the Credit Agreement, and until the payment in full of the principal
of and interest on all Loans made to it and performance of all of its other obligations
thereunder, it shall perform, comply with and be bound by each of the provisions of the
Credit Agreement which are stated to apply to a “Borrower” or a “Subsidiary
Borrower.” Without limiting the generality of the foregoing, the New Subsidiary
Borrower hereby represents and warrants that: (i) the representations and warranties
relating to such New Subsidiary Borrower and, to the extent applicable, its Subsidiaries,
set forth in Article VI of the Credit Agreement [(including,
without limitation, those set forth in Section 6.23)]
[(other than the representation and warranty set forth in Section
6.5 of the Credit Agreement)]17 are true
and correct on and as of the date hereof, and (ii) it has heretofore received a true and
correct copy of the Credit Agreement (including any amendments or modifications thereof or
supplements or waivers thereto) as in effect on the date hereof. In addition, the New
Subsidiary Borrower hereby authorizes the Company to act on its behalf as and to the
extent provided for in Section 1.3, Article II, Section 10.13(B)(ii)
or otherwise in Credit Agreement.
CHOICE
OF LAW. THIS ASSUMPTION LETTER SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF ILLINOIS.
This
Assumption Letter may be executed in any number of counterparts, each of which shall be an
original, but all of which shall together constitute one and the same agreement.
IN
WITNESS WHEREOF, the New Subsidiary Borrower has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF SUBSIDIARY], as the New Subsidiary Borrower
By:
Name:
Title:
Address for Notices under the Credit Agreement:
[_____________]
Acknowledged by and consented to:
BANK ONE, NA (MAIN OFFICE
CHICAGO),as
Administrative Agent
By:
_____________________________________Name:Title:
ARVINMERITOR, INC., as
the Company
By:
_____________________________________Name:Title:
K-2
K-1
EXHIBIT K
TO
CREDIT AGREEMENT
Form of Designation
Agreement
Dated ____________, 20__
Reference
is made to that certain Credit Agreement, dated as of July
[__], 2004, among ArvinMeritor, Inc., an Indiana
corporation (the “Company”), the “Subsidiary
Borrowers” from time to time parties thereto, the financial institutions from time to
time parties thereto as “Lenders”, Bank One, NA (Main Office Chicago), as
Administrative Agent, JPMorgan Chase Bank and Citicorp North America, Inc., as Syndication
Agents, and ABN AMRO Bank N.V., BNP Paribas and UBS Securities LLC, as Documentation
Agents (as the same may be amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”). Terms defined in the
Credit Agreement are used herein as therein defined.
______________
(the “Designating Lender”) and ______________ (the
“Designated Lender”) agree as follows:
| |
(c) |
The Designating Lender hereby designates the Designated Lender, and the
Designated Lender hereby accepts such designation, as its Designated Lender
under the Credit Agreement. |
| |
(d) |
The Designating Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto. |
| |
(e) |
The Designated Lender (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Articles VI and VII thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Designating Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action it may be permitted to take
under the Credit Agreement; (iii) confirms that it is an Eligible Designee; (iv)
appoints and authorizes the Designating Lender as its administrative agent and
attorney-in-fact and grants the Designating Lender an irrevocable power of
attorney to receive payments made for the benefit of the Designated Lender under
the Credit Agreement and to deliver and receive all communications and notices
under the Credit Agreement, if any, that the Designated Lender is obligated to
deliver or has the right to receive thereunder; (v) acknowledges that it is
subject to and bound by the confidentiality provisions of the Credit Agreement
(except as permitted under Sections 13.1(B)(i) and 13.4 thereof);
(vi) agrees that it will comply with the provisions of Section 2.14(E) of
the Credit Agreement to the same extent as if it were a Lender; and (vii)
acknowledges that the Designating Lender retains the sole right and
responsibility to vote under the Credit Agreement, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of the Credit Agreement, and agrees that the Designated Lender shall
be bound by all such votes, approvals, amendments, modifications and waivers and
all other agreements of the Designating Lender pursuant to or in connection with
the Credit Agreement. |
| |
(f) |
Following the execution of this Designation Agreement by the Designating Lender
and the Designated Lender, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Designation Agreement shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on the signature page hereto
(the “Effective Date”). |
| |
(g) |
Upon such acceptance and recording by the Administrative Agent, as of the
Effective Date (a) the Designated Lender shall have the right to make Loans as a
Lender pursuant to Article II of the Credit Agreement and the rights of a
Lender related thereto and (b) the making of any such Loans by the Designated
Lender shall satisfy the obligations of the Designating Lender under the Credit
Agreement to the same extent, and as if, such Loans were made by the Designating
Lender. |
| |
(h) |
Each party to this Designation Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after payment in full of all
outstanding senior indebtedness of any Designated Lender; provided, that
the Designating Lender for each Designated Lender hereby agrees to indemnify,
save and hold harmless each other party hereto for any loss, cost, damage and
expense arising out of its inability to institute any such proceeding against
such Designated Lender. This Section 6 of the Designation Agreement shall
survive the termination of this Designation Agreement and termination of the
Credit Agreement. |
| |
(i) |
This Designation Agreement shall be governed by, and construed in accordance
with, the laws (including 735 ILCS Section 105/5-1 et seq. but otherwise
without regard to the conflicts of law provisions) of the State of Illinois. |
IN
WITNESS WHEREOF, the parties have caused this Designation Agreement to be executed by
their respective officers hereunto duly authorized, as of the date first above written.
Effective
Date18:
[NAME OF DESIGNATING LENDER], as the Designating Lender
By: _____________________________
Name:
Title:
[NAME OF DESIGNATED LENDER], as the Designated Lender
By: ______________________________
Name:
Title:
Accepted and Approved this____
day of ________, _____
BANK ONE, NA (MAIN OFFICE
CHICAGO),
as Administrative Agent
By:
______________________________Name:Title:
EXHIBIT L
TO
CREDIT AGREEMENT
Form of Commitment and
Acceptance
Dated [_______________]
Reference
is made to that certain Credit Agreement, dated as of July
[__], 2004, among ArvinMeritor, Inc., an Indiana
corporation (the “Company”), the “Subsidiary
Borrowers” from time to time parties thereto, the institutions from time to time
parties thereto as “Lenders” and Bank One, NA (Main Office Chicago), as
Administrative Agent (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”). Terms defined
in the Credit Agreement are used herein with the same meaning.
Pursuant
to Section 2.22 of the Credit Agreement, the Company has requested an increase in
the Aggregate Revolving Loan Commitment from $______________ to $_____________. Such
increase in the Aggregate Revolving Loan Commitment is to become effective on the date
(the “Effective Date”) which is the later of (i) _________,
____ and (ii) the date on which the conditions precedent set forth in Section
2.22(C) in respect of such increase have been satisfied. In connection with such
requested increase in the Aggregate Revolving Loan Commitment, the Company, the
Administrative Agent and _________________ (the “Accepting
Bank”) hereby agree as follows:
1.
Effective as of the Effective Date, [the Accepting Bank
shall become a party to the Credit Agreement as a Lender and shall have all of
the rights and obligations of a Lender thereunder and shall thereupon have a
Revolving Loan Commitment under and for purposes of the Credit Agreement in a
Dollar Amount equal to the] [the Revolving Loan Commitment
of the Accepting Bank under the Credit Agreement shall be increased from
$_________ to the] Dollar Amount set forth opposite the
Accepting Bank’s name on the signature page hereof.
[2.
The Accepting Bank hereby (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this
Commitment and Acceptance and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a
Lender thereunder and, to the extent of its interest thereunder, shall have the
obligations of a Lender thereunder, (iii) agrees that its payment instructions
and notice instructions are as set forth in Schedule 1 to this Commitment
and Acceptance, (iv) it is not satisfying and shall not satisfy any of its
obligations pursuant to the Credit Agreement with any assets considered for
purposes of ERISA or Section 4975 of the Code to be assets of or on behalf of
any “plan” as defined in Section 3(3) of ERISA or Section 4975 of the
Code, regardless of whether subject to ERISA or Section 4975 of the Code, and
that its rights, benefits and interests in and under the Loan Documents will not
be “plan assets” under ERISA, (v) it is not relying on or looking to
any Margin Stock for repayment of the Loans and Reimbursement Obligations
provided for in the Credit Agreement, (vi) it has received a copy of the Credit
Agreement, together with copies of financial statements and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Commitment and Acceptance and to assume its interest
under the Credit Agreement on the basis of which it has made such analysis and
decision independently and without reliance on the Administrative Agent or any
other Lender, and (vii) attached as Schedule 1 to this Commitment and
Acceptance is any documentation required to be delivered by the Accepting Bank
with respect to its tax status pursuant to the terms of the Credit Agreement,
duly completed and executed by the Accepting Bank and (b) agrees (i) that it
will, independently and without reliance on the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents and (ii) that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.]19
[3.]
The Company hereby represents and warrants that as of the date hereof and as of
the Effective Date, (a) all representations and warranties of the Company
contained in Article VI of the Credit Agreement [(other than the
representation and warranty set forth in Section 6.5 of the Credit
Agreement)]20 shall be true and correct in all
material respects as though made on such date (unless such representation and
warranty is made as of a specific date, in which case such representation and
warranty shall be true and correct in all material respects as of such date;
[and] (b) [the Company has Single Investment Grade Status;
and (c)]21 no event shall have occurred and then
be continuing which constitutes a Default or an Unmatured Default.
[4.]
THIS COMMITMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS (INCLUDING 735 ILCS SECTION 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS) OF THE
STATE OF ILLINOIS.
[5.]
This Commitment and Acceptance Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Commitment and Acceptance Agreement
to be executed by their respective officers thereunto duly authorized, as of the date
first above written.
ARVINMERITOR, INC., as the Company
By:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Administrative Agent
By:
Title:
COMMITMENT ACCEPTING BANK
$ [BANK]
By:
Title:
[SCHEDULE 1 –
PART I
ADMINISTRATIVE
QUESTIONNAIRE
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
(For Forms for Primary Syndication call Xxxxxxxx Xxxxxxx at 312-732-8844)
(For Forms after Primary Syndication call Xxx Xxxxx at 000-000-0000)]22
[SCHEDULE 1 –
PART II
U.S. AND NON-U.S. TAX
INFORMATION REPORTING REQUIREMENTS
(Schedule to be supplied by Closing Unit or Trading Documentation Unit)
(For Forms for Primary Syndication call Xxxxxxxx Xxxxxxx at 312-732-8844)
(For Forms after Primary Syndication call Xxx Xxxxx at 000-000-0000)]23
* As of the Closing Date,
Canadian Dollars and Sterling shall only constitute Agreed Currencies with respect to
Swing Line Loans. 1 Insert name of any applicable Subsidiary Borrower.
2 Insert if the Company has Single Investment Grade Status.
3 Insert if the Company has Single Investment Grade Status.
4 Insert name of any applicable Subsidiary Borrower.
5 Insert name of beneficiary.
6 Insert if the Company has Single Investment Grade Status.
7 Insert if the Company has Single Investment Grade Status.
8 Select as applicable.
|
* |
Amount to be adjusted by the counterparties to take into account any payments or
prepayments made between the Trade Date and the Effective Date. |
9 Set forth, to at least 9 decimals, as a percentage of the Revolving Loan Commitment or Loans of all
Lenders thereunder.
10 Insert if satisfaction of minimum amounts is to be determined as of the Trade Date.
11 To be added only if the consent of the Administrative Agent is required by the terms of the Credit
Agreement.
12 To be added only if the consent of the Company is required by the terms of the Credit Agreement.
13 Appropriate modifications acceptable to the Administrative Agent shall be made to this Exhibit G in the
context of demonstrating pro forma covenant compliance as a condition precedent to a Permitted Acquisition.
14 ArvinMeritor to advise whether it would prefer a detailed enumeration of the various components of
"Indebtedness", which is now defined more broadly than in the Existing Credit Agreement.
15 In the case of a Compliance Certificate delivered in connection with a Permitted Acquisition, the
| |
Maximum
Debt Ratio shall be (i) 3.00 to 1.00 as of the end of the applicable twelve-month period,
if such period ends on or before March 31, 2007 or (ii) otherwise, 2.75 to 1.00. |
|
16 |
Not applicable from and after the date upon which the Company shall have initially
achieved Double Investment Grade Status. |
17 Insert if the Company has Single Investment Grade Status.
18 This date should be no earlier than the date of acceptance by the Administrative Agent.
19 To be included only in a Commitment and Acceptance for a Proposed New Lender.
20 Insert if the Company has Single Investment Grade Status.
21 Insert if the Company has Single Investment Grade Status.
22 To be included only in a Commitment and Acceptance for a Proposed New Lender.
23 To be included only in a Commitment and Acceptance for a Proposed New Lender.