EXHIBIT 10 (h)
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CREDIT AGREEMENT
Dated as of September 10, 2002
among
XXXXXXX-XXXXXX COMPANY,
THE BORROWING SUBSIDIARIES
FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
THE OTHER LENDERS PARTY HERETO
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................. 1
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 16
1.03 Accounting Terms 17
1.04 Rounding 17
1.05 References to Agreements and Laws 17
1.06 Times of Day 17
1.07 Exchange Rates; Currency Equivalents 17
1.08 Additional Permitted Foreign Currencies 18
1.09 Redenomination of Certain Permitted Foreign Currencies 18
ARTICLE II THE COMMITMENTS AND BORROWINGS.................................. 18
2.01 Committed Loans 18
2.02 Borrowings, Conversions and Continuations of Committed Loans 19
2.03 Bid Loans 20
2.04 Designation of Additional Borrowing Subsidiaries; Termination of
Borrowing Subsidiaries 23
2.05 Prepayments 24
2.06 Termination or Reduction of Commitments 25
2.07 Repayment of Loans 25
2.08 Interest 25
2.09 Fees 26
2.10 Computation of Interest and Fees 26
2.11 Evidence of Debt 27
2.12 Payments Generally 27
2.13 Sharing of Payments 29
2.14 Company Guaranty 29
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY......................... 32
3.01 Taxes 32
3.02 Illegality 33
3.03 Inability to Determine Rates 34
3.04 Increased Cost; Capital Adequacy; Reserves on Eurodollar Rate
Loans 34
3.05 Funding Losses 35
3.06 Matters Applicable to all Requests for Compensation 36
3.07 Survival 36
ARTICLE IV CONDITIONS PRECEDENT TO BORROWINGS.............................. 36
4.01 Conditions of Initial Borrowing 36
4.02 Conditions to all Borrowings 37
ARTICLE V REPRESENTATIONS AND WARRANTIES................................... 38
5.01 Corporate Existence and Power 38
5.02 Corporate Authorization; No Contravention 38
5.03 Governmental Authorization 38
5.04 Binding Effect 39
5.05 Litigation 39
5.06 No Default 39
5.07 ERISA Compliance 39
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5.08 Use of Proceeds; Margin Regulations 40
5.09 Title to Properties 40
5.10 Taxes 40
5.11 Financial Condition 40
5.12 Environmental Matters 41
5.13 Regulated Entities 41
5.14 Copyrights, Patents, Trademarks and Licenses, etc. 41
5.15 Subsidiaries/Investments 41
5.16 Insurance 41
5.17 Full Disclosure 42
ARTICLE VI AFFIRMATIVE COVENANTS........................................... 42
6.01 Financial Statements 42
6.02 Certificates; Other Information 42
6.03 Notices 43
6.04 Preservation of Corporate Existence, Etc. 44
6.05 Maintenance of Property 44
6.06 Insurance 44
6.07 Payment of Obligations 44
6.08 Compliance with Laws 45
6.09 Compliance with ERISA 45
6.10 Inspection of Property and Books and Records 45
6.11 Environmental Laws 45
6.12 Use of Proceeds 46
ARTICLE VII NEGATIVE COVENANTS............................................. 46
7.01 Limitation on Liens 46
7.02 Disposition of Assets 47
7.03 Consolidations and Mergers 48
7.04 Margin Stock 48
7.05 Restricted Payments 49
7.06 ERISA 49
7.07 Accounting Changes 49
7.08 Consolidated Interest Coverage Ratio 49
7.09 Consolidated Leverage Ratio 49
7.10 Consolidated Fixed Charge Coverage Ratio 49
7.11 Subsidiary Indebtedness 49
7.12 Transactions with Affiliates 50
7.13 Burdensome Agreements 50
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES................................ 50
8.01 Events of Default 50
8.02 Remedies Upon Event of Default 52
8.03 Application of Funds 53
ARTICLE IX ADMINISTRATIVE AGENT............................................ 54
9.01 Appointment and Authorization of Administrative Agent 54
9.02 Delegation of Duties 54
9.03 Liability of Administrative Agent 54
9.04 Reliance by Administrative Agent 54
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9.05 Notice of Default 55
9.06 Credit Decision; Disclosure of Information by Administrative
Agent 55
9.07 Indemnification of Administrative Agent 56
9.08 Administrative Agent in its Individual Capacity 56
9.09 Successor Administrative Agent 56
9.10 Administrative Agent May File Proofs of Claim 57
9.11 Other Agents; Arrangers and Managers 58
ARTICLE X MISCELLANEOUS..................................................... 58
10.01 Amendments, Etc 58
10.03 No Waiver; Cumulative Remedies 60
10.04 Attorney Costs, Expenses and Taxes 60
10.05 Indemnification 61
10.06 Payments Set Aside 62
10.07 Successors and Assigns 62
10.08 Confidentiality 64
10.09 Set-off 65
10.10 Interest Rate Limitation 65
10.11 Counterparts 66
10.12 Integration 66
10.13 Survival of Representations and Warranties 66
10.14 Severability 66
10.15 Tax Forms 66
10.16 Replacement of Lenders 68
10.17 Governing Law 68
10.18 Waiver of Right to Trial by Jury 69
10.19 Judgment Currency 70
10.20 Subordination of Intercompany Indebtedness 70
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SCHEDULES
1.01 Mandatory Cost Rate
2.01 Commitments and Pro Rata Shares
5.15 List of Material Subsidiaries and Material Equity Investments
10.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
Form of
2.02 Committed Loan Notice
2.03(b) Bid Request
2.03(c) Competitive Bid
2.04(a) Borrowing Subsidiary Agreement
2.04(b) Borrowing Subsidiary Termination
2.11 Note
6.02 Compliance Certificate
10.07 Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of September 10,
2002, among XXXXXXX-XXXXXX COMPANY, a Delaware corporation (the "Company"),
XXXXXXX-XXXXXX USA, INC., a Delaware corporation ("A-C USA"), as a Borrowing
Subsidiary, XXXXX BEAUTY COMPANY, INC., a Delaware corporation ("Xxxxx
Beauty"), as a Borrowing Subsidiary, BEAUTY SYSTEMS GROUP, INC., a Delaware
corporation ("Beauty Systems Group"), as a Borrowing Subsidiary, each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent.
The Company has requested that the Lenders provide a $300,000,000 revolving
credit facility, and the Lenders are willing to do so on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Absolute Rate" means a fixed rate of interest expressed in multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a rate
determined with reference to an Absolute Rate. All Absolute Rate Loans shall be
denominated in Dollars.
"A-C USA" has the meaning specified in the introductory paragraph hereto.
"Acquisition" means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the equity
securities of a Person entitled to vote, or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary) provided that
the Company or the Subsidiary is the surviving entity.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means, with respect to any Available
Currency, the Administrative Agent's address and, as appropriate, account as
set forth on Schedule 10.02 with respect to such Available Currency, or such
other address or account with respect to such Available Currency as the
Administrative Agent may from time to time notify the Company and the Lenders;
provided that in no event shall any such address or account change be made
without 2 Business Days prior written notice to the Company.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
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"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlled" has a
meaning correlative thereto.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" means the Commitments of all the Lenders. As of the
Closing Date, the Aggregate Commitments are $300,000,000.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Rating as set forth below:
Applicable Rate
Debt Ratings
Pricing S&P/ Facility Utilization Eurodollar Base
Level Xxxxx'x Fee Fee Rate Rate
------- -------------- -------- ----------- ---------- ----
1 A/A2 or better 0.080% 0.100% 0.220% 0%
2 A-/A3 0.100% 0.100% 0.300% 0%
3 BBB+/Baa1 0.125% 0.100% 0.425% 0%
4 BBB/Baa2 0.150% 0.125% 0.600% 0%
5 BBB-/Baa3 or
worse 0.200% 0.125% 0.800% 0%
Initially, the Applicable Rate shall be determined based upon the Debt
Rating specified in the certificate delivered pursuant to Section 4.01(a)(vi).
Thereafter, each change in the Applicable Rate resulting from a publicly
announced change in the Debt Rating shall be effective during the period
commencing on the date of the public announcement thereof and ending on the
date immediately preceding the effective date of the next such change.
If a Debt Rating is issued by both Xxxxx'x and S&P, then the higher of such
Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the
highest and the Debt Rating for Pricing Level 5 being the lowest), unless there
is a split in Debt Ratings of more than one Pricing Level, in which case the
Pricing Level that is one level lower than the Pricing Level of the higher Debt
Rating shall apply.
"Applicable Time" means, with respect to any borrowings and payments in
Permitted Foreign Currencies, the local times in the place of settlement for
such Permitted Foreign Currencies as may be reasonably determined by the
Administrative Agent to be necessary for timely settlement on the relevant date
in accordance with normal banking procedures in the place of payment.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
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"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit 10.07.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP and (b) in respect of any Permitted Receivables Financing of any Person,
the Investment Amount of such financing.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Company and its Subsidiaries for the fiscal year ended September 30,
2001, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.
"Available Currency" means Dollars and any Permitted Foreign Currency.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination
of the Commitment of each Lender to make Loans pursuant to Section 8.02.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Beauty Systems Group" has the meaning specified in the introductory
paragraph hereto.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid Loans of
the same Type from each of the Lenders whose offer to make one or more Bid
Loans as part of such borrowing has been accepted under the auction bidding
procedures described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a). All Bid Loans
shall be denominated in Dollars.
"Bid Loan Lender" means, in respect of any Bid Loan, the Lender making such
Bid Loan to a Loan Party.
"Bid Request" means a written request for one or more Bid Loans
substantially in the form of Exhibit 2.03(b).
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"Borrowing" means a Committed Borrowing or a Bid Borrowing, as the context
may require.
"Borrowing Subsidiary" means any of A-C USA, Xxxxx Beauty, Beauty Systems
Group and any other Subsidiary designated as a Borrowing Subsidiary by the
Company from time to time pursuant to Section 2.04(a) that has not ceased to be
a Borrowing Subsidiary pursuant to such Section 2.04(b).
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary Agreement,
substantially in the form of Exhibit 2.04(a).
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination, substantially in the form of Exhibit 2.04(b).
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are required to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and (a) if such day relates to
any Eurodollar Rate Loan denominated in any Available Currency other than Euro,
means any such day on which dealings in deposits in the applicable Available
Currency are conducted by and between banks in the applicable offshore
interbank market for such Available Currency or (b) if such day relates to any
Eurodollar Rate Loan denominated in Euro, means a TARGET Day.
"Closing Date" means September 10, 2002.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to make Committed
Loans to the Loan Parties pursuant to Section 2.01, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same Available Currency and, in the
case of Eurodollar Rate Committed Loans, having the same Interest Period made
by each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Committed Loans as the same Type, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit 2.02.
"Company" has the meaning specified in the introductory paragraph hereto.
"Competitive Bid" means a written offer by a Lender to make one or more Bid
Loans, substantially in the form of Exhibit 2.03(c), duly completed and signed
by a Lender.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit 6.02.
"Consolidated EBIT" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income
for such period, plus (b) Consolidated Interest
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Charges for such period, plus (c) all taxes accrued for such period on or
measured by income to the extent included in the determination of Consolidated
Net Income.
"Consolidated EBITR" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated EBIT for such
period, plus (b) Consolidated Rental Expense for such period to the extent
included in the determination of Consolidated Net Income.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITR for the fiscal year ending
on such date to (b) the sum of (i) Consolidated Interest Charges for such
period plus (ii) Consolidated Rental Expense for such period.
"Consolidated Interest Charges" means, without duplication, for any period,
for the Company and its Subsidiaries on a consolidated basis, all amounts
treated as interest expense for such period to the extent included in the
determination of Consolidated Net Income for such period and the actual or
implied interest component of Permitted Receivables Financings, each as
determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBIT for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period.
"Consolidated Leverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated Total Funded Indebtedness as of such date to (b)
Consolidated Total Capitalization as of such date.
"Consolidated Net Income" means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the net income (or loss) of the Company
and its Subsidiaries (excluding extraordinary or non-recurring gains or losses
and, to the extent included in net income (or loss), non-cash expenses relating
to stock options granted by the Company) for such period, as determined in
accordance with GAAP.
"Consolidated Rental Expense" means, for any period, for the Company and
its Subsidiaries on a consolidated basis, rental expense under operating leases
for such period, as determined in accordance with GAAP.
"Consolidated Total Capitalization" means, as of any date of determination,
the sum of (a) Consolidated Total Funded Indebtedness plus (b) the sum of the
amounts set forth on the consolidated balance sheet of the Company and its
Subsidiaries as shareholders' equity, as determined in accordance with GAAP.
"Consolidated Total Funded Indebtedness" means, without duplication, as of
any date of determination, for the Company and its Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all non-contingent obligations arising under letters of
credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments, (d) all obligations in
respect of the deferred purchase price of property or services (other than
accounts payable in the ordinary course of business), (e) Attributable
Indebtedness, (f) without duplication, all Guarantees with respect to
outstanding Indebtedness of the types specified in clauses (a) through (e)
above of Persons other than the Company or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability
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company) in which the Company or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the
Company or such Subsidiary.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate".
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt Ratings") of the
Company's non-credit-enhanced, senior unsecured long-term debt.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in
each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans required to be funded by it hereunder within one
Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Permitted Foreign Currency, the equivalent amount thereof in
Dollars as reasonably determined by the Administrative Agent at such time on
the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of Dollars with such Permitted Foreign
Currency.
"Eligible Assignee" has the meaning specified in Section 10.07(f).
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998, as amended from time to time.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the "euro" or otherwise).
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"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means any and all federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Company or any of its Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurodollar Bid Margin" means the margin above or below the Eurodollar Rate
to be added to or subtracted from the Eurodollar Rate, which margin shall be
expressed in multiples of 1/100/th/ of one basis point.
"Eurodollar Margin Bid Loan" means a Bid Loan that bears interest at a rate
based upon the Eurodollar Rate. All Eurodollar Margin Bid Loans shall be
denominated in Dollars.
"Eurodollar Rate" means, (a) for any Interest Period with respect to any
Eurodollar Rate Loan other than one referred to in clause (b) of this
definition:
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(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in the applicable
Available Currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to (or in
the case of Pounds Sterling, on) the first day of such Interest Period, or
(ii) if the rate referenced in the preceding clause (i) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the applicable Available Currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to (or in the case of Pounds Sterling, on)
the first day of such Interest Period, or
(iii) if the rates referenced in the preceding clauses (i) and (ii)
are not available, the rate per annum reasonably determined by the
Administrative Agent as the rate of interest at which deposits in the
applicable Available Currency for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America
(or, in the case of a Bid Loan, the applicable Bid Loan Lender) and with a
term equivalent to such Interest Period would be offered by Bank of
America's (or such Bid Loan Lender's) London Branch to major banks in the
London interbank eurodollar market at their request at approximately 4:00
p.m. (London time) two Business Days prior to (or in the case of Pounds
Sterling, on) the first day of such Interest Period; and
(b) for any Interest Period with respect to any Eurodollar Rate Loan
advanced by a Lender required to comply with the relevant requirements of the
Bank of England and the Financial Services Authority of the United Kingdom, the
sum of (i) the rate determined in accordance with subsection (a) of this
definition and (ii) the Mandatory Cost Rate for such Interest Period.
The Eurodollar Rate shall be rounded to the next 1/100%.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears interest
at a rate based on the Eurodollar Rate. Eurodollar Rate Committed Loans may be
denominated in any Available Currency.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or a
Eurodollar Margin Bid Loan.
"Event of Default" means any of the events or circumstances specified in
Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
regulations promulgated thereunder.
"Existing Credit Agreement" means that certain Multicurrency Credit
Agreement dated as of September 11, 1997 among the Company, the borrowing
subsidiaries party thereto, Bank of America, N.A., formerly Bank of America
National Trust and Savings Association, as agent, and a syndicate of lenders.
8
"Federal Funds Rate" means, for any day, the 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 by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as reasonably determined by the
Administrative Agent.
"Fee Letter" means the letter agreement, dated July 30, 2002, among the
Company, the Administrative Agent and the Arranger.
"Foreign Currency Committed Loan" means a Eurodollar Rate Committed Loan
denominated in a Permitted Foreign Currency.
"Foreign Lender" has the meaning specified in Section 10.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S.
accounting profession) or that are promulgated by any Governmental Authority
having appropriate jurisdiction.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" has the meaning specified in Section 10.07(g).
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith. The term "Guarantee" as a verb has a corresponding
meaning.
9
"Guaranteed Obligations" has the meaning specified in Section 2.14(a).
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP: (a) all obligations of such Person for
borrowed money and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments; (b) all
non-contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments; (c) aggregate net obligations, if any, of
such Person under all outstanding Swap Contracts; (d) all obligations of such
Person to pay the deferred purchase price of property or services (other than
accounts payable in the ordinary course of business); (e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness of such Person and (g) all Guarantees of such
Person in respect of any of the kinds of indebtedness or obligations described
in the foregoing clauses (a) through (f). For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such
Person. The amount of any net obligation under any outstanding Swap Contract on
any date shall be deemed to be the Swap Termination Value thereof as of such
date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling
of assets for creditors, or other similar arrangement in respect of its
creditors generally or any substantial portion of its creditors, in each case
undertaken under federal, state or foreign law, including the Bankruptcy Code
of the United States.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case
of any Eurodollar Rate Committed Loan) converted to or continued as a
Eurodollar Rate Loan and ending on the date one, two, three, six, nine or
twelve months thereafter, as selected by the Company (on behalf of itself or
any Borrowing Subsidiary) in its Committed Loan Notice or Bid Request, as the
case may be, subject to availability of such period; and
10
(b) as to each Absolute Rate Loan, a period of not less than 7 days and not
more than 180 days as selected by the Company (on behalf of itself or any
Borrowing Subsidiary) in its Bid Request; provided that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day
unless, in the case of a Eurodollar Rate Loan, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment Amount" means, at any time, the aggregate amount of Permitted
Receivables sold, secured or pledged in connection with Permitted Receivables
Financings as reported in the Company's most recent Compliance Certificate,
which amount is reflected in the Company's most recent internal, unaudited
consolidated balance sheet as "receivables sold", "long-term debt" or
"short-term debt."
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Company
and the Administrative Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever in respect of any asset (including any conditional sale or
other title retention agreement, and any financing lease having substantially
the same economic effect as any of the foregoing).
"Loan" means an extension of credit by a Lender to any Loan Party under
Article II in the form of a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, and each
Borrowing Subsidiary Agreement.
"Loan Parties" means, collectively, the Company and each Borrowing
Subsidiary.
"Mandatory Cost Rate" means, with respect to any period, a rate per annum
determined in accordance with Schedule 1.01.
11
"Mandatory Cost Rate Reference Lender" means each of Bank of America and
such other Lender as may be identified by the Administrative Agent from time to
time.
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its consolidated
Subsidiaries taken as a whole, which change or effect shall exceed 15% of the
Company's total consolidated assets as shown on its consolidated balance sheet
for its most recent prior fiscal quarter; or (b) a material adverse effect upon
the legality, validity, binding effect or enforceability against the Company or
any Borrowing Subsidiary of any Loan Document which material adverse effect was
not caused by any Lender.
"Material Subsidiary" means, at any time, any Subsidiary having at such
time either (i) total (net) revenues for the last fiscal year in excess of 15%
of total (net) revenues of the Company and its consolidated Subsidiaries for
such period or (ii) total assets, as of the last day of the preceding fiscal
year, having a net book value in excess of 15% of the total assets of the
Company and its consolidated Subsidiaries as of such day, in each case, based
upon the Company's most recent annual financial statements delivered to the
Administrative Agent under Section 6.01.
"Maturity Date" means September 9, 2005.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Note" means a promissory note made by the Loan Parties in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit 2.11.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document,
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
12
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in a Permitted Foreign Currency, the rate of interest per
annum at which overnight deposits in the applicable Permitted Foreign Currency,
in an amount approximately equal to the amount with respect to which such rate
is being determined, would be offered for such day by a branch or Affiliate of
Bank of America located in the applicable interbank market for such currency to
major banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Foreign Currency" means each of (i) Australian Dollars, (ii)
Canadian Dollars, (iii) British Pounds Sterling, (iv) the Euro, (v) Swedish
Krona, (vi) Mexican Pesos and (vii) each other lawful currency (other than
Dollars) that is freely available and freely transferable and convertible into
Dollars and which is approved by all the Lenders in accordance with Section
1.08.
"Permitted Foreign Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Permitted Foreign Currency as determined by the Administrative Agent
at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Permitted Foreign Currency
with Dollars.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables" shall mean all obligations of any obligor (whether
now existing or hereafter arising) under a contract for sale of goods or
services by the Company or any of its Subsidiaries, which shall include any
obligation of such obligor (whether now existing or hereafter arising) to pay
interest, finance charges or amounts with respect thereto, and, with respect to
any of the foregoing receivables or obligations, (a) all of the interest of the
Company or any of its Subsidiaries in the goods (including returned goods) the
sale of which gave rise to such receivable or obligation after the passage of
title thereto to any obligor, (b) all other Liens and property subject thereto
from time to time purporting to secure payment of such receivables or
obligations, and (c) all guarantees, insurance, letters of credit and other
agreements or arrangements of whatever character from time to time supporting
or securing payment of any such receivables or obligations.
"Permitted Receivables Financing" shall mean any financing transaction or
series of financing transactions (including factoring arrangements) pursuant to
which the Company or any of its Subsidiaries may sell, pledge, convey or
otherwise transfer, or grant a security interest in, Permitted Receivables to a
special purpose subsidiary or Affiliate or any other Person.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
13
"Peso Sublimit" means $150,000,000.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Company or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pro Rata Share" means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender at such time
and the denominator of which is the amount of the Aggregate Commitments at such
time; provided that if the Commitment of each Lender to make Loans has been
terminated pursuant to Section 8.02, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately
prior to such termination and after giving effect to any subsequent assignments
made pursuant to the terms hereof. The initial Pro Rata Share of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice and (b)
with respect to a Bid Loan, a Bid Request.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the Commitment of each Lender
to make Loans has been terminated pursuant to Section 8.02, Lenders holding in
the aggregate more than 50% of the Total Outstandings; provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
"Responsible Officer" means the chairman, any vice chairman, the chief
executive officer, president, chief financial officer, controller, treasurer,
any assistant treasurer, or any executive vice president, senior vice president
or group vice president of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of the Company or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest
or of any option, warrant or other right to acquire any such capital stock or
other equity interest.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of a Foreign Currency Committed Loan, (b) each date of a continuation
of a Foreign Currency Committed Loan pursuant to Section 2.02; and (c) the last
Business Day of each calendar month.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
14
"Xxxxx Beauty" has the meaning specified in the introductory paragraph
hereto.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in a Permitted Foreign Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking
transactions in the relevant Permitted Foreign Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SPC" has the meaning specified in Section 10.07(g).
"Spot Rate" for a currency means the rate quoted by Bank of America, in
good faith, as the spot rate for the purchase by Bank of America of such
currency with another currency through its principal foreign exchange trading
office at approximately 11:00 a.m., on the date two Business Days prior to the
date as of which the foreign exchange computation is made.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the Company.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other similar master
agreement (any such master agreement, together with any related schedules, a
"Master Agreement"), including any such obligations or liabilities under any
Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as
the xxxx-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) System (or, if such clearing system
ceases to be operative, such
15
other clearing system (if any) determined by the Administrative Agent to be a
suitable replacement) is operating.
"Total Outstandings" means with respect to the Loans on any date, the
Dollar Equivalent of the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Committed
Loans and Bid Loans, as the case may be, occurring on such date.
"Type" means (a) with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurodollar Rate Committed Loan, and (b) with respect to a Bid
Loan, its character as an Absolute Rate Loan or a Eurodollar Margin Bid Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Wholly-Owned Subsidiary" means any Subsidiary in which (other than
directors' qualifying shares or similar nominal shares required or permitted by
law) 80% or more of the equity securities of each class having ordinary voting
power, and 80% or more of the equity securities of every other class, in each
case, at the time as of which any determination is being made, is owned,
beneficially and of record, by the Company, or by one or more of the other
Wholly-Owned Subsidiaries, or both.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and
words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means
"to and including."
16
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted
pursuant to this Agreement shall be prepared in conformity with GAAP,
applied on a consistent basis, as in effect from time to time, except as
otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and
either the Company or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio
or requirement made before and after giving effect to such change in GAAP.
1.04 Rounding.
Any financial ratios required to be maintained by the Company pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications are not prohibited by any Loan Document; and (b) references to
any Law shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.
1.06 Times of Day.
Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).
1.07 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of
Borrowings and Obligations denominated in Permitted Foreign Currencies. Such
Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties
17
hereunder or calculating financial covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a Loan, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Borrowing or Loan is
denominated in a Permitted Foreign Currency, such amount shall be the relevant
Permitted Foreign Currency Equivalent of such Dollar amount (rounded to the
nearest 1,000 units of such Permitted Foreign Currency), as determined by the
Administrative Agent.
1.08 Additional Permitted Foreign Currencies.
The Company may from time to time request that Eurodollar Rate Committed
Loans be made in a currency other than those specifically listed in the
definition of "Permitted Foreign Currency"; provided that such requested
currency otherwise meets the requirements set forth in such definition. Any
such request shall be made to the Administrative Agent (which shall promptly
notify each Lender thereof) not later than 11:00 a.m., fifteen (15) Business
Days prior to the date of the desired Borrowing. Each Lender shall notify the
Administrative Agent, not later than 11:00 a.m., ten (10) Business Days after
receipt of such request whether it consents, in its sole discretion, to making
Eurodollar Rate Committed Loans in such requested currency. Any failure by a
Lender to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by such Lender to make
Eurodollar Rate Committed Loans in such requested currency. If all the Lenders
consent to making Eurodollar Rate Committed Loans in such requested currency,
the Administrative Agent shall so notify the Company and such currency shall
thereupon be deemed for all purposes to be a Permitted Foreign Currency
hereunder. If a Lender does not consent to making Eurodollar Rate Committed
Loans in such requested currency, the Company may replace such Lender in
accordance with Section 10.16.
1.09 Redenomination of Certain Permitted Foreign Currencies.
(a) Each obligation of any Loan Party to make a payment denominated in the
national currency unit of any member state of the EMU that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation). If, in
relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that
if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing, at the end of the then current Interest Period.
(b) If the Administrative Agent reasonably believes that changes to this
Agreement are required to reflect the adoption of the Euro by any member state
of the EMU and any relevant market conventions or practices relating to the
Euro, the Administrative Agent shall propose such changes in writing to the
Company and the Lenders, and the parties shall negotiate in good faith with
respect to the making of such changes.
ARTICLE II
THE COMMITMENTS AND BORROWINGS
2.01 Committed Loans.
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Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans in Available Currencies (each such loan, a "Committed
Loan") to the Loan Parties from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Commitment; provided, however, that
after giving effect to any Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, (ii) the Dollar Equivalent of the
aggregate outstanding principal amount of the Foreign Currency Committed Loans
denominated in Mexican Pesos shall not exceed the Peso Sublimit and (iii) the
Dollar Equivalent of the aggregate outstanding principal amount of the
Committed Loans of any Lender shall not exceed such Lender's Commitment. Within
the limits of each Lender's Commitment, and subject to the other terms and
conditions hereof, the Loan Parties may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Committed Loans
denominated in Dollars may be Base Rate Loans or Eurodollar Rate Committed
Loans. Committed Loans denominated in Permitted Foreign Currencies shall be
Eurodollar Rate Committed Loans.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Eurodollar Rate Committed
Loans shall be made upon the Company's irrevocable notice (on behalf of
itself or any Borrowing Subsidiary) to the Administrative Agent, which may
be given by telephone. Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Committed Loans denominated in Dollars,
(ii) four Business Days (five Business Days in the case of Austrialian
Dollars and other "Pacific-Rim" currencies) prior to the requested date of
any Borrowing of or continuation of Eurodollar Rate Committed Loans
denominated in a Permitted Foreign Currency, and (iii) on the requested
date of any Borrowing of Base Rate Loans or of any conversion of Eurodollar
Rate Committed Loans denominated in Dollars to Base Rate Loans. Each
telephonic notice by the Company (on behalf of itself or any Borrowing
Subsidiary) pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company.
Each Borrowing of, conversion to or continuation of Eurodollar Rate
Committed Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Company is requesting
a Committed Borrowing, a conversion of Committed Loans from one Type to the
other, or a continuation of Eurodollar Rate Committed Loans, (ii) the
identity of the Loan Party, (iii) the Available Currency of the Loans to be
borrowed, (iv) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (v) the
principal amount of Committed Loans to be borrowed, converted or continued,
(vi) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted, and (vii) if applicable, the duration
of the Interest Period with respect thereto. If the Company fails to
specify a currency in a Committed Loan Notice requesting a Borrowing, then
the Committed Loans so requested shall be made in Dollars. If the Company
fails to specify a Type of Committed Loan in a Committed Loan Notice, such
notice shall be deemed invalid and the Administrative Agent shall promptly
notify the Company of the same. If the Company fails to give a timely
notice requesting a conversion or continuation of an outstanding Committed
Loan, then the applicable Committed Loan shall be continued as the same
Type of Committed Loan denominated in the same Available Currency with, in
the case of a Eurodollar Committed Loan, an Interest Period of one month.
If the Company (on behalf of itself or any Borrowing Subsidiary) requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Committed
Loans in any such
19
Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month. No Committed Loan
may be converted into or continued as a Committed Loan denominated in a
different currency, but instead must be prepaid in the original currency of
such Loan and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Pro Rata Share
of the applicable Committed Loans, and if no timely notice of a conversion
or continuation is provided by the Company (on behalf of itself or any
Borrowing Subsidiary), the Administrative Agent shall notify each Lender of
the details of any automatic continuation of such Committed Loans, in each
case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in Same Day Funds at the
Administrative Agent's Office for the applicable Available Currency not
later than 1:00 p.m., in the case of any Committed Loan denominated in
Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Committed Loan denominated in a
Permitted Foreign Currency, in each case on the Business Day specified in
the applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02, the Administrative Agent shall make
all funds so received available to the applicable Loan Party in like funds
as received by the Administrative Agent either by (i) crediting the account
of the applicable Loan Party on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company (on behalf of itself or any Borrowing
Subsidiary).
(c) Except as otherwise provided herein, a Eurodollar Rate Committed
Loan may be continued or converted only on the last day of an Interest
Period for such Eurodollar Rate Committed Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as
Eurodollar Rate Committed Loans with Interest Periods exceeding one month
without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Company and the
Lenders of the interest rate applicable to any Interest Period for
Eurodollar Rate Committed Loans upon determination of such interest rate.
The determination of the Eurodollar Rate by the Administrative Agent shall
be conclusive in the absence of manifest error. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Company
and the Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of
such change.
(e) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than ten (10)
Interest Periods in effect with respect to Committed Loans.
2.03 Bid Loans.
(a) General. Subject to the terms and conditions set forth herein,
each Lender agrees that the Company (on behalf of itself or any Borrowing
Subsidiary) may from time to time request the Lenders to submit offers to
make loans in Dollars (each such loan, a "Bid Loan") to any Loan Party
prior to the Maturity Date pursuant to this Section 2.03; provided,
however, that after giving effect to any Bid Borrowing, the Total
Outstandings shall not exceed the Aggregate Commitments. There shall not be
more than eight (8) different Interest Periods in effect with respect to
Bid Loans at any time.
20
(b) Requesting Competitive Bids. The Company (on behalf of itself or
any Borrowing Subsidiary) may request the submission of Competitive Bids by
delivering a Bid Request to the Administrative Agent not later than 12:00
noon (i) two Business Days prior to the requested date of any Bid Borrowing
that is to consist of Absolute Rate Loans, or (ii) five Business Days prior
to the requested date of any Bid Borrowing that is to consist of Eurodollar
Margin Bid Loans. Each Bid Request shall specify (i) the requested date of
the Bid Borrowing (which shall be a Business Day), (ii) the identity of the
Loan Party, (iii) the aggregate principal amount of Bid Loans requested
(which must be $5,000,000 or a whole multiple of $1,000,000 in excess
thereof), (iv) the Type of Bid Loans requested, and (v) the duration of the
Interest Period with respect thereto, and shall be signed by a Responsible
Officer of the Company. No Bid Request shall contain a request for (i) more
than one Type of Bid Loan or (ii) Bid Loans having more than three
different Interest Periods. Unless the Administrative Agent otherwise
agrees in its sole and absolute discretion, the Company (on behalf of
itself or any Borrowing Subsidiary) may not submit a Bid Request if it has
submitted another Bid Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender of
each Bid Request received by it from the Company and the contents of
such Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit a
Competitive Bid containing an offer to make one or more Bid Loans in
response to such Bid Request. Such Competitive Bid must be delivered
to the Administrative Agent not later than 10:30 a.m. (A) one Business
Day prior to the requested date of any Bid Borrowing that is to
consist of Absolute Rate Loans, and (B) three Business Days prior to
the requested date of any Bid Borrowing that is to consist of
Eurodollar Margin Bid Loans; provided, however, that any Competitive
Bid submitted by Bank of America in its capacity as a Lender in
response to any Bid Request must be submitted to the Administrative
Agent not later than 10:15 a.m. on the date on which Competitive Bids
are required to be delivered by the other Lenders in response to such
Bid Request. Each Competitive Bid shall specify (A) the proposed date
of the Bid Borrowing; (B) the principal amount of each Bid Loan for
which such Competitive Bid is being made, which principal amount (x)
may be equal to, greater than or less than the Commitment of the
bidding Lender, (y) must be $5,000,000 or a whole multiple of
$1,000,000 in excess thereof, and (z) may not exceed the principal
amount of Bid Loans for which Competitive Bids were requested; (C) if
the proposed Bid Borrowing is to consist of Absolute Rate Bid Loans,
the Absolute Rate offered for each such Bid Loan and the Interest
Period applicable thereto; (D) if the proposed Bid Borrowing is to
consist of Eurodollar Margin Bid Loans, the Eurodollar Bid Margin with
respect to each such Eurodollar Margin Bid Loan and the Interest
Period applicable thereto; and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in clause (ii) above, (B)
is not substantially in the form of a Competitive Bid as specified
herein, (C) contains qualifying, conditional or similar language, (D)
proposes terms other than or in addition to those set forth in the
applicable Bid Request, or (E) is otherwise not responsive to such Bid
Request. Any Lender may correct a Competitive Bid containing a
manifest error by submitting a corrected Competitive Bid (identified
as such) not later than the applicable time required for submission of
Competitive Bids. Any such submission of a corrected Competitive Bid
21
shall constitute a revocation of the Competitive Bid that contained the
manifest error. The Administrative Agent may, but shall not be required
to, notify any Lender of any manifest error it detects in such Lender's
Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 and 4.02
and clause (iii) above, each Competitive Bid shall be irrevocable.
(d) Notice to Company of Competitive Bids. Not later than 11:00 a.m.
(i) on the requested date of any Bid Borrowing that is to consist of
Absolute Rate Loans, or (ii) three Business Days prior to the requested
date of any Bid Borrowing that is to consist of Eurodollar Margin Bid
Loans, the Administrative Agent shall notify the Company of the identity of
each Lender that has submitted a Competitive Bid that complies with Section
2.03(c) and of the terms of the offers contained in each such Competitive
Bid.
(e) Acceptance of Competitive Bids. Not later than 11:45 a.m. (i) on
the requested date of any Bid Borrowing that is to consist of Absolute Rate
Loans, and (ii) three Business Days prior to the requested date of any Bid
Borrowing that is to consist of Eurodollar Margin Bid Loans, the Company
(on behalf of itself or any Borrowing Subsidiary) shall notify the
Administrative Agent of its acceptance or rejection of the offers notified
to it pursuant to Section 2.03(d). The Company shall be under no obligation
to accept any Competitive Bid and may choose to reject all Competitive
Bids. In the case of acceptance, such notice shall specify the aggregate
principal amount of Competitive Bids for each Interest Period that is
accepted. The Company (on behalf of itself or any Borrowing Subsidiary) may
accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Bid Request;
(ii) the principal amount of each Bid Loan must be $5,000,000 or a
whole multiple of $1,000,000 in excess thereof;
(iii) the acceptance of offers may be made only on the basis of
ascending Absolute Rates or Eurodollar Bid Margins within each Interest
Period, as the case may be; and
(iv) the Company (on behalf of itself or any Borrowing Subsidiary)
may not accept any offer that is described in Section 2.03(c)(iii) or
that otherwise fails to comply with the requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have
submitted Competitive Bids at the same Absolute Rate or Eurodollar Bid
Margin, as the case may be, for the same Interest Period, and the result of
accepting all of such Competitive Bids in whole (together with any other
Competitive Bids at lower Absolute Rates or Eurodollar Bid Margins, as the
case may be, accepted for such Interest Period in conformity with the
requirements of Section 2.03(e)(iii)) would be to cause the aggregate
outstanding principal amount of the applicable Bid Borrowing to exceed the
amount specified therefor in the related Bid Request, then, unless
otherwise agreed by the Company, the Administrative Agent and such Lenders,
such Competitive Bids shall be accepted as nearly as possible in proportion
to the amount offered by each such Lender in respect of such Interest
Period, with such accepted amounts being rounded to the nearest whole
multiple of $1,000,000.
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(g) Notice to Lenders of Acceptance or Rejection of Bids. The
Administrative Agent shall promptly notify each Lender having submitted a
Competitive Bid whether or not its offer has been accepted and, if its
offer has been accepted, of the amount of the Bid Loan or Bid Loans to be
made by it on the date of the applicable Bid Borrowing. Any Competitive Bid
or portion thereof that is not accepted by the Company (on behalf of itself
or any Borrowing Subsidiary) by the applicable time specified in Section
2.03(e) shall be deemed rejected.
(h) Notice of Eurodollar Rate. If any Bid Borrowing is to consist of
Eurodollar Margin Loans, the Administrative Agent shall determine the
Eurodollar Rate for the relevant Interest Period, and promptly after making
such determination, shall notify the Company and the Lenders that will be
participating in such Bid Borrowing of such Eurodollar Rate.
(i) Funding of Bid Loans. Each Lender that has received notice
pursuant to Section 2.03(g) that all or a portion of its Competitive Bid
has been accepted by the Company (on behalf of itself or any Borrowing
Subsidiary) shall make the amount of its Bid Loan(s) available to the
Administrative Agent in Same Day Funds at the Administrative Agent's Office
not later than 1:00 p.m. on the date of the requested Bid Borrowing. Upon
satisfaction of the applicable conditions set forth in Section 4.02, the
Administrative Agent shall make all funds so received available to the
applicable Loan Party in like funds as received by the Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant to this Section 2.03, the Administrative Agent shall notify each
Lender that submitted a Competitive Bid in such auction of the ranges of
bids submitted (without the bidder's name) and accepted for each Bid Loan
and the aggregate amount of each Bid Borrowing.
2.04 Designation of Additional Borrowing Subsidiaries; Termination of
Borrowing Subsidiaries.
(a) Designation. In addition to A-C USA, Xxxxx Beauty and Beauty Systems
Group, the Company may from time to time designate any of its Subsidiaries that
is a Wholly-Owned Subsidiary to be a Borrowing Subsidiary hereunder subject to
the satisfaction of the following conditions precedent:
(i) the Administrative Agent shall have received the Borrowing
Subsidiary Agreement with respect to such Borrowing Subsidiary executed and
delivered by the Company and such Borrowing Subsidiary;
(ii) the Administrative Agent shall have received such documents and
certificates as the Administrative Agent may reasonably request relating to
the organization, existence and good standing of such Borrowing Subsidiary,
the authorization of the transactions contemplated hereby relating to such
Borrowing Subsidiary and any other legal matters relating to such Borrowing
Subsidiary, its Borrowing Subsidiary Agreement or such transactions, all in
form and substance reasonably satisfactory to the Administrative Agent; and
(iii) the Administrative Agent shall have received a favorable written
opinion of the Company's counsel for such Borrowing Subsidiary (which
counsel, in the case of any foreign Subsidiary, shall be licensed in the
jurisdiction of such foreign Subsidiary's organization), covering such
matters (including, without limitation, matters of the type described in
Sections 5.01, 5.02, 5.03, 5.04 and 5.13) relating to such Borrowing
Subsidiary or its Borrowing Subsidiary Agreement as the Administrative
Agent shall reasonably request.
Upon satisfaction of such conditions precedent, such Subsidiary shall
for all purposes be a party hereto as a Borrowing Subsidiary as fully as if
it had executed and delivered this Agreement.
23
(b) Termination. The Company may terminate a Borrowing Subsidiary by
delivering to the Administrative Agent a Borrowing Subsidiary Termination with
respect to such Borrowing Subsidiary. Notwithstanding the foregoing or any
contrary provision contained in this Agreement, no Lender shall be obligated to
make, continue or convert any Committed Loan to or for any Borrowing Subsidiary
if the Company shall have executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to such Borrowing Subsidiary
(whether or not such Borrowing Subsidiary has agreed to such Borrowing
Subsidiary Termination). Prior to termination of a Borrowing Subsidiary, all
Loans outstanding to such Borrowing Subsidiary must be repaid.
2.05 Prepayments.
(a) The Loan Parties may, upon notice from the Company to the
Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not later
than 11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Committed Loans or (B) on the date of prepayment of Base
Rate Loans; (ii) except in the circumstances contemplated by Section
2.05(c), any prepayment of Eurodollar Rate Committed Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding;
and (iii) except in the circumstances contemplated by Section 2.05(c), any
prepayment of Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof or, if less, the entire
principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Committed Loans
to be prepaid. The Administrative Agent will promptly notify each Lender of
its receipt of each such notice, and of the amount of such Lender's Pro
Rata Share of such prepayment. If such notice is given by the Company (on
behalf of itself or any Borrowing Subsidiary), the applicable Loan Party
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05.
Each such prepayment shall be applied to the Committed Loans of the Lenders
in accordance with their respective Pro Rata Shares.
(b) No Bid Loan may be prepaid without the prior consent of the
applicable Bid Loan Lender.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect, then upon written notice from the
Administrative Agent, the Loan Parties shall immediately prepay Loans in an
aggregate amount equal to such excess; provided, however, (i) if such
prepayment obligation is a result of changes in the Spot Rate on any
Revaluation Date and the amount of such prepayment obligation does not
exceed $1,000,000, no such prepayment shall be required pursuant to this
Section 2.05(c) and (ii) if such prepayment obligation is a result of
changes in the Spot Rate on any Revaluation Date and the amount of such
prepayment obligation exceeds $1,000,000, the Loan Parties may defer such
prepayment obligation until the next Revaluation Date (a "Deferral Date").
On any Deferral Date, the Loan Parties shall prepay Loans in an aggregate
amount equal to the amount by which the Total Outstandings (calculated
using current Spot Rates) on such Deferral Date exceeds the Aggregate
Commitments then in effect.
(d) If for any reason the Dollar Equivalent of the aggregate
outstanding principal amount of the Foreign Currency Committed Loans
denominated in Mexican Pesos exceeds the
24
Peso Sublimit then in effect, then upon written notice from the
Administrative Agent, the Loan Parties shall immediately prepay Foreign
Currency Committed Loans denominated in Mexican Pesos in an aggregate
amount equal to such excess; provided, however, (i) if such prepayment
obligation is a result of changes in the Spot Rate on any Revaluation Date
and the amount of such prepayment obligation does not exceed $1,000,000, no
such prepayment shall be required pursuant to this Section 2.05(d) and (ii)
if such prepayment obligation is a result of changes in the Spot Rate on
any Revaluation Date and the amount of such prepayment obligation exceeds
$1,000,000, the Loan Parties may defer such prepayment obligation until the
next Deferral Date. On any Deferral Date, the Loan Parties shall prepay
Foreign Currency Committed Loans denominated in Mexican Pesos in an
aggregate amount equal to the amount by which the Dollar Equivalent of the
aggregate outstanding principal amount of the Foreign Currency Committed
Loans denominated in Mexican Pesos (calculated using current Spot Rates) on
such Deferral Date exceeds the Peso Sublimit then in effect.
2.06 Termination or Reduction of Commitments.
The Company may, upon notice to the Administrative Agent, terminate the
Aggregate Commitments, or from time to time permanently reduce the Aggregate
Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in
an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof, and (iii) the Company shall not terminate or reduce the Aggregate
Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All facility fees accrued in respect of the
Aggregate Commitments to be terminated through the effective date of such
termination shall be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) Each Loan Party shall repay to the Lenders on the Maturity Date the
aggregate principal amount of its Committed Loans outstanding on such date.
(b) Each Loan Party shall repay each of its Bid Loans on the earlier to
occur of (i) the last day of the Interest Period in respect thereof or (ii)
the Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal
to the applicable Eurodollar Rate for such Interest Period plus the
Applicable Rate; (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii)
each Bid Loan shall bear interest on the outstanding principal amount
thereof for the Interest Period therefor at a rate per annum equal to the
applicable Eurodollar Rate for such Interest Period plus (or minus) the
applicable Eurodollar Bid Margin, or at the applicable Absolute Rate for
such Interest Period, as the case may be.
(b) After the occurrence and continuation of an Event of Default under
Section 8.01(a) or (c), or commencing five (5) days after the occurrence
and continuation of any other
25
Event of Default, the Loan Parties shall pay interest on the principal
amount of all outstanding Obligations hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Accrued and unpaid interest on past
due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
(a) Facility Fee. The Company shall pay to the Administrative Agent,
for the account of each Lender in accordance with its Pro Rata Share, a
facility fee in Dollars equal to the Applicable Rate for Facility Fees
times the actual daily amount of the Aggregate Commitments (or, if the
Aggregate Commitments have terminated, on the aggregate outstanding
principal amount of all Committed Loans), regardless of usage. The
facility fee shall accrue at all times during the Availability Period (and
thereafter so long as any Committed Loans remain outstanding) and shall be
due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date (and, if
applicable, thereafter on demand). The facility fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate
during any quarter, the daily amount of the facility fee for each day
during such quarter shall be computed and multiplied by the Applicable
Rate in effect on such day.
(b) Utilization Fee. The Company shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Pro Rata
Share, a utilization fee in Dollars equal to the Applicable Rate for
Utilization Fees times the Total Outstandings on each day that the Total
Outstandings exceed 50% of the actual amount of the Aggregate Commitments
on such day. The utilization fee shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The utilization fee shall be calculated
quarterly in arrears and if there is any change in the Applicable Rate
during any quarter, the daily amount of the utilization fee for each day
during such quarter shall be computed and multiplied by the Applicable
Rate in effect on such day.
(c) Other Fees. The Company shall pay to the Arranger and the
Administrative Agent, for their own respective accounts, the fees in the
amounts and at the times specified in the Fee Letter. Such fees shall be
fully earned when paid and shall not be refundable for any reason
whatsoever.
2.10 Computation of Interest and Fees.
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All
computations of interest for Foreign Currency Committed Loans denominated in
Pounds Sterling shall be made on the basis of a year of 365 days and actual
days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year), or, in the case of interest in respect of Foreign Currency Committed
Loans as to which
26
market practice differs from the foregoing, in accordance with such market
practice. Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid
on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day.
If applicable, for the purposes of the Interest Act (Canada), (a) whenever
a rate of interest or fee rate hereunder is calculated on the basis of a year
(the "deemed year") that contains fewer days than the actual number of days in
the calendar year of calculation, such rate of interest or fee rate shall be
expressed as a yearly rate by multiplying such rate of interest or fee rate by
the actual number of days in the calendar year of calculation and dividing it
by the number of days in the deemed year, (b) the principle of deemed
reinvestment of interest shall not apply to any interest calculation hereunder
and (c) the rates of interest stipulated herein are intended to be nominal
rates and not effective rates or yields.
2.11 Evidence of Debt.
The Borrowings made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent demonstrable
error of the amount of the Borrowings made by the Lenders to the Loan Parties
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligations of the
Loan Parties hereunder to pay any amount owing with respect to the Obligations
or of the Lenders to make any Borrowings required hereunder. In the event of
any conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of demonstrable error. Upon the request of any Lender made through the
Administrative Agent, the Loan Parties shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type, amount and maturity of its
Loans and payments with respect thereto and the relevant Loan Party to which
such Loan was made.
2.12 Payments Generally.
(a) All payments to be made by the Loan Parties shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein and except with respect to
principal of and interest on Foreign Currency Committed Loans, all payments
by the Loan Parties hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at
the applicable Administrative Agent's Office in Dollars and in Same Day
Funds not later than 2:00 p.m. on the date specified herein. Except as
otherwise expressly provided herein, all payments by the Loan Parties
hereunder with respect to principal and interest on Foreign Currency
Committed Loans shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent's Office in such Permitted Foreign Currency and in
Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. The Administrative
Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender's Lending Office. All payments
received by the Administrative Agent (i) after 2:00 p.m. in the case of
payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in a Permitted Foreign
Currency, shall in each case be deemed
27
received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period", if any payment to
be made by a Loan Party shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the
case may be.
(c) Unless the Company or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that any Loan Party or such Lender, as the
case may be, will not make such payment, the Administrative Agent may
assume that such Loan Party or such Lender, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled
thereto. If and to the extent that such payment was not in fact made to
the Administrative Agent in Same Day Funds, then:
(i) if such Loan Party failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in Same Day Funds, together with interest thereon in respect of each
day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid
to the Administrative Agent in Same Day Funds, at the applicable
Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in Same Day Funds, together with interest thereon for the period from
the date such amount was made available by the Administrative Agent to
the applicable Loan Party to the date such amount is recovered by the
Administrative Agent (the "Compensation Period") at a rate per annum
equal to the applicable Overnight Rate from time to time in effect. If
such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Committed Loan or Bid Loan, as
the case may be, included in the applicable Borrowing. If such Lender
does not pay such amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent may make a demand therefor
upon the applicable Loan Party, and such Loan Party shall pay such
amount to the Administrative Agent, together with interest thereon for
the Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing. Nothing herein shall
be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent
or the Loan Parties may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Loan Parties
with respect to any amount owing under this subsection (c) shall be
conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to
the applicable Loan Party by the Administrative Agent because the
conditions to the applicable Borrowing set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received
from such Lender) to such Lender, without interest.
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(e) The obligations of the Lenders hereunder to make Committed Loans
are several and not joint. The failure of any Lender to make any Committed
Loan on any date required hereunder shall not relieve any other Lender of
its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Committed
Loan.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the
funds for any Loan in any particular place or manner.
2.13 Sharing of Payments.
If, other than as expressly provided elsewhere herein (including in
Section 10.16), any Lender shall obtain on account of the Committed Loans made
by it, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Committed Loans pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. Each Loan
Party agrees that any Lender so purchasing a participation from another Lender
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of such
Loan Party in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.14 Company Guaranty.
(a) Guarantee.
(i) To induce the Administrative Agent and the Lenders to execute and
deliver this Agreement and to make the extensions of credit provided for
herein to the Borrowing Subsidiaries, the Company hereby unconditionally
and irrevocably guarantees to the Administrative Agent and the Lenders and
their respective successors, permitted transferees and permitted assigns,
as a primary obligor and not merely as a surety, the prompt and complete
payment and performance by the Borrowing Subsidiaries when due (whether at
the stated maturity, by acceleration or otherwise) of all of the
Obligations of the Borrowing Subsidiaries from time to time (the
"Guaranteed Obligations"). The Company further agrees to pay any and all
reasonable expenses (including, without limitation, all Attorney Costs)
which may be paid or incurred by the Administrative Agent or any Lender in
enforcing any rights with respect to, or
29
collecting, any or all of the Guaranteed Obligations or enforcing any
rights with respect to, or collecting against, the Company under this
Section 2.14. This Guarantee shall remain in full force and effect until
all such Obligations are paid in full and the Commitments are terminated,
notwithstanding that from time to time prior thereto the Borrowing
Subsidiaries may be free from any Obligations.
(ii) No payment or payments made by any Borrowing Subsidiary or any
other Person or received or collected by the Administrative Agent or any
Lender from any Borrowing Subsidiary or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application, at
any time or from time to time, in reduction of or in payment of the
Guaranteed Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company under this Section 2.14
(other than to the extent of such payment) which shall, notwithstanding
any such payment or payments, remain in full force and effect until the
Guaranteed Obligations are paid in full and the Commitments are
terminated. The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender
on account of its liability under this Section 2.14, it will notify the
Administrative Agent and such Lender in writing that such payment is made
under this Section 2.14 for such purpose.
(b) No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in this Section 2.14, the
Company shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any Borrowing Subsidiary or any
other guarantor or any collateral security or guarantee or right of offset held
by any Lender for the payment of the Guaranteed Obligations, nor shall the
Company seek or be entitled to seek any contribution or reimbursement from any
Borrowing Subsidiary or any other guarantor in respect of payments made by the
Company hereunder, until all amounts owing to the Administrative Agent and the
Lenders by the Borrowing Subsidiaries on account of the outstanding Guaranteed
Obligations are paid in full. If any amount shall be paid to the Company on
account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by the
Company in trust for the Administrative Agent and the Lenders, segregated from
other funds of the Company, and shall, forthwith upon receipt by the Company,
be turned over to the Administrative Agent in the exact form received by the
Company (duly endorsed by the Company to Administrative Agent, if required), to
be applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as the Administrative Agent and the Required Lenders may determine.
The provisions of this subsection shall survive the termination of the
guarantee contained in this Section 2.14.
(c) Amendments, etc. with Respect to the Obligations; Waiver of
Rights. The Company shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Company, and without notice to or
further assent by the Company, any demand for payment of any of the Guaranteed
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Guaranteed Obligations
continued, and the Guaranteed Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or any Lender, and
this Agreement, the other Loan Documents, and any other documents executed and
delivered in connection herewith or therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent
(or the Required Lenders, as the case may be) or such Lender may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Administrative Agent or any Lender for the payment of the
Guaranteed Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender (or its Affiliates) shall have
any obligation to protect,
30
secure, perfect or insure any Lien at any time held by it as security for the
Guaranteed Obligations or for the guarantee contained in this Section 2.14 or
any property subject thereto. When making any demand hereunder against the
Company, the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on the relevant Borrowing Subsidiary or
any other guarantor, and any failure by the Administrative Agent or any Lender
to make any such demand or to collect any payments from such Borrowing
Subsidiary or any such other guarantor or any release of such Borrowing
Subsidiary or such other grantor shall not relieve the Company of its
obligations or liabilities under this Section 2.14, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
the Administrative Agent or any Lender against the Company. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
(d) Guarantee Absolute and Unconditional. The Company waives, to the
fullest extent permitted by applicable law, any and all notice of the creation,
renewal, extension or accrual of any of the Guaranteed Obligations and notice
of or proof of reliance by the Administrative Agent or any Lender upon the
guarantee contained in this Section 2.14 or acceptance of the guarantee
contained in this Section 2.14, the Guaranteed Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 2.14 and all dealings between the Company or any Borrowing
Subsidiary, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, shall likewise be conclusively presumed to have been had or
consummated in full reliance upon the guarantee contained in this Section 2.14.
The Company waives, to the fullest extent permitted by applicable law,
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrowing Subsidiaries with respect to the Guaranteed
Obligations. This Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of this Agreement, any note, any other Loan
Document, any of the Guaranteed Obligations or any guarantee or right of offset
with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrowing Subsidiaries against the
Administrative Agent or any Lender or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Company) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrowing Subsidiaries for the Guaranteed Obligations, or of the Company under
the guarantee contained in this Section 2.14, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against the Company,
the Administrative Agent and any Lender may, but shall be under no obligation
to, pursue such rights and remedies as it may have against the Borrowing
Subsidiaries or any other Person or against any guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or
to collect any payments from the Borrowing Subsidiaries or any such other
Person or to realize upon any such guarantee or to exercise any such right of
offset, or any release of the Borrowing Subsidiaries or any such other Person
or of any such guarantee or right of offset, shall not relieve the Company of
any liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the Company. The guarantee contained
in this Section 2.14 shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Company and its
successors, permitted transferees and permitted assigns, until all the
Guaranteed Obligations and the obligations of the Company under this Section
2.14 shall have been satisfied and by payment in full and the Commitments shall
be terminated, notwithstanding that from time to time during the term of this
Agreement the Borrowing Subsidiaries may be free from any Obligations.
(e) Reinstatement. The guarantee contained in this Section 2.14 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the Administrative
31
Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of any Borrowing Subsidiary or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, such Borrowing Subsidiary or any substantial part of its property,
or otherwise, all as though such payments had not been made.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to Section 10.15, any and all payments by the Loan Parties
to or for the account of the Administrative Agent or any Lender under any
Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
with respect thereto, excluding, in the case of the Administrative Agent
and each Lender, taxes imposed on or measured by its net income, branch
profits taxes and franchise taxes imposed on it, by a jurisdiction (or any
political subdivision thereof) under the Laws of which the Administrative
Agent or such Lender, as the case may be, is organized, maintains a
lending office or conducts business (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If any
Loan Party shall be required by any Laws to deduct any Taxes from or in
respect of any sum payable under any Loan Document to the Administrative
Agent or any Lender, (i) the sum payable shall be increased as necessary
so that after making all such required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions, (iii) such Loan Party shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of
such payment to the relevant tax authority, the Company shall furnish to
the Administrative Agent (which shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof or,
if no such receipt is available, other evidence of payment reasonably
satisfactory to the Administrative Agent.
(b) In addition, the Loan Parties agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under
any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan
Document (hereinafter referred to as "Other Taxes").
(c) If any Loan Party shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document
to the Administrative Agent or any Lender, such Loan Party shall also pay
to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative
Agent or such Lender reasonably specifies as is necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on
or measured by net income) that the Administrative Agent or such Lender
would have received if such Taxes or Other Taxes had not been deducted or
paid. The Administrative Agent or any Lender entitled to any payment under
this Section 3.01(c) shall provide the Company with any evidence
reasonably requested by the Company necessary to substantiate the
calculation of such payment in accordance with the provisions hereof.
32
(d) The Loan Parties agree to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable
under this Section) paid by the Administrative Agent and such Lender, (ii)
amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or
with respect thereto. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes
a written demand therefor.
(e) If the Company (or any other Loan Party) is required to pay any
amount to any Lender or the Administrative Agent pursuant to subsection
(c) or (d) of this Section, then such Lender shall use reasonable efforts
(consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment which may thereafter accrue, if such change in the reasonable
judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) Each Lender agrees to promptly notify the Company of the first
written assessment of any Taxes, Other Taxes or additional amount
specified under Section 3.01(c) payable by the Company (or any other Loan
Party) hereunder which is received by such Lender, provided that failure
to give such notice shall not prejudice the Lender's rights under Section
3.01 hereof unless and to the extent the Company (or any such other Loan
Party) shall be prejudiced by failure to give such notice. The Company
shall not be obligated to pay any Taxes, Other Taxes or such additional
amount under this Section 3.01 which are assessed against any Lender if
the statute of limitations applicable thereto (as same may be extended
from time to time by agreement between such Lender and the relevant
Governmental Authority) has lapsed.
(g) If a Lender is entitled to and actually claims a U.S. foreign tax
credit for Taxes paid by the Loan Parties and received an additional
amount from the Loan Parties with respect to those Taxes pursuant to
Section 3.01(c), then (i) such Lender shall use its best efforts to
reimburse the Loan Parties for such additional amount to the extent that
such Lender determines, in its sole discretion, that it received an
identifiable benefit for such foreign tax credits; and (ii) any amounts
payable under subparagraph (i) hereof shall be due no earlier than the
time when the IRS is time-barred by statute from taking any action to
reduce or eliminate these foreign tax credits.
3.02 Illegality.
If any Lender reasonably determines that the introduction of any Law, or
any change in any Law, or in the interpretation or administration of any Law,
occurring after the date of this Agreement has made it unlawful, or that any
Governmental Authority has asserted after the date of this Agreement that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans in any Available Currency, or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority
has imposed after the date of this Agreement material restrictions on the
authority of such Lender to purchase or sell, or to take deposits of, any
Available Currency in the applicable interbank market, then, on notice thereof
by such Lender to the Company through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans in the affected
Available Currency or, where the affected Available Currency is Dollars, to
convert Base Rate Loans to Eurodollar Rate Committed Loans shall be suspended
until such Lender notifies the Administrative Agent and the Company that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Loan Parties shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert such Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the
33
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Loan Parties shall also pay accrued interest on
the amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 Inability to Determine Rates.
(a) If the Required Lenders reasonably determine that in connection with
any request for a Eurodollar Rate Committed Loan or a conversion to or
continuation thereof for any reason (i) deposits in the relevant Available
Currency are not being offered to banks in the applicable offshore interbank
market for such Available Currency for the applicable amount and Interest
Period of such Eurodollar Rate Committed Loan or (ii) adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to such Available Currency for such Eurodollar
Rate Committed Loan, or (b) if all of the Lenders reasonably determine that in
connection with any request for a Eurodollar Rate Committed Loan or a
conversion to or continuation thereof for any reason, the Eurodollar Rate for
any requested Interest Period with respect to such Eurodollar Rate Committed
Loan does not adequately and fairly reflect the cost to such Lenders of funding
such Loan, then, in each case, the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurodollar Rate Committed Loans in the affected Available Currency
shall be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice, which instructions and ensuing
revocation notice shall be promptly given upon a change in circumstances. Upon
receipt of such notice, the Company (on behalf of itself or any Borrowing
Subsidiary) may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Committed Loans in the affected Available
Currency or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans in the amount specified
therein (or in the case of request involving a Permitted Foreign Currency, the
Dollar Equivalent of such amount).
3.04 Increased Cost; Capital Adequacy; Reserves on Eurodollar Rate Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, in any such case
after the Closing Date, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar
Rate Loans, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of
this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall
govern), (ii) changes in the basis of branch profits or franchise taxes
and changes in the taxation of net income or gross income by the United
States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its
Lending Office or conducts business, and (iii) reserve requirements
contemplated by Section 3.04(c)), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Loan Parties shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
(c) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, in any such case after the Closing Date, affects or would
increase the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender as a consequence of
such Lender's obligations hereunder (taking into consideration its
policies with respect to capital adequacy),
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then from time to time upon demand of such Lender (with a copy of such
demand to the Administrative Agent), the Loan Parties shall pay to such
Lender such additional amounts as will compensate such Lender for such
increase.
(c) The Loan Parties shall pay to each Lender (to the extent such
Lender has not otherwise been compensated therefor hereunder), as long as
such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or
deposits (currently known as "Eurocurrency liabilities"), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal
to the actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination shall be
conclusive absent demonstrable error), which shall be due and payable on
each date on which interest is payable on such Loan, provided the Loan
Parties shall have received at least 15 days' prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If
a Lender fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 15 days
from receipt of such notice.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent) from
time to time, the Loan Parties shall promptly compensate such Lender for and
hold such Lender harmless from any direct loss, cost or expense incurred by it
as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by the Loan Parties (for a reason other than the
failure of such Lender to make a Loan) to prepay, or, other than as a
result of Section 3.02 or 3.03, to borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Company;
(c) any failure by the Loan Parties to make payment of any Loan (or
interest due thereon) denominated in a Permitted Foreign Currency on its
scheduled due date or any payment thereof in a different currency; or
(d) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Company pursuant to Section 10.16;
including any foreign exchange losses and any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were
obtained. The Loan Parties shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Loan Parties to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded
each Eurodollar Rate Committed Loan made by it at the Eurodollar Rate for such
Loan by a matching deposit or other borrowing in the applicable offshore
interbank market for such Available Currency for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Committed Loan was in
fact so funded.
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3.06 Matters Applicable to all Requests for Compensation.
(a) Any Lender claiming reimbursement or compensation under this
Article III shall deliver to the Company (with a copy to the Administrative
Agent) a certificate setting forth in reasonable detail the amount payable
to the Lender hereunder.
(b) Upon (i) any Lender's making a claim for compensation under Section
3.01 or 3.04, (ii) any Lender's collecting of a Mandatory Cost Rate with
respect to any outstanding Loan or (iii) any Lender's giving of the notice
described in the first sentence of Section 3.02 (which notice has not been
revoked), the Company may replace such Lender in accordance with Section
10.16.
3.07 Survival.
All of the Loan Parties' obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO BORROWINGS
4.01 Conditions of Initial Borrowing.
The obligation of each Lender to make its initial Loans hereunder is
subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed, where applicable, by a
Responsible Officer of the signing Loan Party, each dated the Closing Date
(or, in the case of certificates of governmental officials, a recent date
before the Closing Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to the Administrative Agent, each Lender and the
Company;
(ii) a Note executed by the Loan Parties in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(iv) the Organization Documents of each Loan Party and such other
certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, and that
each Loan Party is validly existing, in good standing and qualified to
engage in business in the jurisdiction of its organization;
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(v) favorable opinions of Xxxx Xxxx & Xxxxx LLC and internal counsel
to the Loan Parties, addressed to the Administrative Agent and each
Lender, in form and substance satisfactory to the Lenders;
(vi) a certificate signed by a Responsible Officer of the Company
certifying (A) that the conditions specified in Sections 4.02(a) and
(b) have been satisfied, (B) that there has been no event or
circumstance since the date of the Audited Financial Statements that
has had or would be reasonably expected to have, either individually or
in the aggregate, a Material Adverse Effect; (C) the current Debt
Ratings; and (D) no consents, licenses and approvals are required in
connection with the execution, delivery and performance by the Loan
Parties and the validity against each Loan Party of the Loan Documents
to which it is a party; and
(vii) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Required Lenders reasonably
may require.
(b) The Existing Credit Agreement shall have been terminated and all
obligations thereunder shall have been satisfied in full.
(c) Subject to the terms of the Fee Letter, any fees and expenses,
including Attorney Costs of the Administrative Agent, required to be paid
on or before the Closing Date shall have been paid.
4.02 Conditions to all Borrowings.
The obligation of each Lender to honor any Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate Committed Loans)
is subject to the following conditions precedent:
(a) The representations and warranties of the Company and each other
Loan Party contained in Article V and each other Loan Document shall be
true and correct on and as of the date of such Borrowing, except to the
extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in Sections 5.11(a) and (c) shall
be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed
Borrowing.
(c) The Administrative Agent shall have received a Request for Credit
Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Committed Loans) submitted by the Company (on
behalf of itself or any Borrowing Subsidiary) shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of the applicable Borrowing.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants (and each other Loan Party severally
represents and warrants for itself with respect to the following sections,
except for Sections 5.07, 5.11, 5.16 and 5.17) to the Administrative Agent and
each Lender that:
5.01 Corporate Existence and Power.
The Company, each Loan Party and each of their Material Subsidiaries:
(a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business (except where the failure to have any such governmental license,
authorization, consent or approval would not reasonably be expected to have
a Material Adverse Effect) and to execute, deliver, and as to the Loan
Parties only, to perform their obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license except when the failure to so qualify or be so
licensed or in good standing would not preclude it from enforcing its
rights with respect to any of its assets or expose it to any liability,
which in either case would reasonably be expected to have a Material
Adverse Effect; and
(d) is in all material respects in compliance with all Laws except to
the extent that the failure to do so would not reasonably be expected to
have a Material Adverse Effect.
5.02 Corporate Authorization; No Contravention.
The execution, delivery and performance by each Loan Party of this
Agreement and each other Loan Document to which such Loan Party is party, have
been duly authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Loan Party's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual
Obligation to which such Loan Party is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Loan Party or
its property is subject except where such conflict, breach, contravention
or Lien would not reasonably be expected to have a Material Adverse Effect;
or
(c) violate any Law.
5.03 Governmental Authorization.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of the Agreement or any other Loan Document.
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5.04 Binding Effect.
This Agreement and each other Loan Document to which any Loan Party is a
party constitute the legal, valid and binding obligations of such Loan Party,
enforceable against such Loan Party in accordance with their respective terms,
except as enforceability may be limited by applicable Debtor Relief Laws or by
equitable principles relating to enforceability.
5.05 Litigation.
There are no actions, suits, proceedings, claims or disputes pending, or to
the best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) would reasonably be expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature
has been issued by any court or other Governmental Authority purporting to
enjoin or restrain the execution, delivery or performance of this Agreement or
any other Loan Document, or directing that the transactions provided for herein
or therein not be consummated as herein or therein provided.
5.06 No Default.
At the Closing Date and at the time of any Borrowing, no Default exists or
would result from the incurring of any Obligations by the Loan Parties. As of
the Closing Date, neither the Company nor any Material Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected
to have a Material Adverse Effect, or that would, if such default had occurred
after the Closing Date, create an Event of Default under Section 8.01(e).
5.07 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law
except where non-compliance would not reasonably be expected to result in a
Material Adverse Effect. Each Plan which is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter
from the IRS and to the best knowledge of the Company, nothing has occurred
which would cause the loss of such qualification and which, upon the loss
of such qualification, would reasonably be expected to result in a Material
Adverse Effect. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan
where the failure to make such contribution or where such application or
extension would, in each case, reasonably be expected to result in a
Material Adverse Effect.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or would reasonably
be expected to result in a Material Adverse Effect. There has been
39
no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan which has resulted or would reasonably be
expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007
of ERISA); (iv) neither the Company nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has
engaged in a transaction that could be subject to Section 4069 or 4212(c)
of ERISA; that, in the case of any of clauses (i) through (v), would
reasonably be expected to result in a Material Adverse Effect.
5.08 Use of Proceeds; Margin Regulations.
The proceeds of the Loans are to be used solely for the purposes set forth
in and permitted by Section 6.12 and Section 7.04.
5.09 Title to Properties.
The Company and each Material Subsidiary have good record and marketable
title in fee simple to, or to their knowledge valid leasehold interests in, all
real property necessary for the ordinary conduct of their respective
businesses, except for such defects in title or invalidity of leasehold
interests as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. As of the Closing Date and to the
best knowledge of the Company, the property of the Company and its Material
Subsidiaries is subject to no Liens, other than Permitted Liens.
5.10 Taxes.
The Company and its Material Subsidiaries have filed all federal and other
material tax returns and reports required to be filed, and have paid all
federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided
in accordance with GAAP or where failure to file such return or to pay any such
tax would not reasonably be expected to have a Material Adverse Effect. To the
best knowledge of the Company, there is no proposed tax assessment against the
Company or any Subsidiary that would, if made, have a Material Adverse Effect.
5.11 Financial Condition.
(a) The Audited Financial Statements and the unaudited consolidated
financial statements dated June 30, 2002:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein, subject to normal year end audit adjustments in the case
of such unaudited statements; and
40
(ii) fairly present the financial condition of the Company and its
consolidated Subsidiaries as of the date thereof and results of
operations for the period covered thereby.
(b) As of the Closing Date, there has been no Material Adverse Effect
since September 30, 2001.
(c) Since the date of the most recent statements furnished pursuant to
clause (a) or (b) of Section 6.01, there has been no Material Adverse
Effect.
5.12 Environmental Matters.
The Company conducts in the ordinary course of business a review of the
effect of existing Environmental Laws and existing Environmental Claims on its
business, operations and properties, and as a result thereof the Company has
reasonably concluded that to the best of its knowledge, such Environmental Laws
and Environmental Claims would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.13 Regulated Entities.
None of the Company, any Person controlling the Company, or any Subsidiary,
is an "Investment Company" within the meaning of the Investment Company Act of
1940.
5.14 Copyrights, Patents, Trademarks and Licenses, etc.
To the best knowledge of the Company, the Company or its Material
Subsidiaries own or are licensed or otherwise have the right to use all of the
patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person except where the failure to own, be licensed to or
otherwise have the right to use the same would not have a Material Adverse
Effect. To the best knowledge of the Company, no material slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Material Subsidiary infringes upon any rights held by any other Person where
any such infringement would reasonably be expected to have a Material Adverse
Effect. No claim or litigation regarding any of the foregoing is pending or to
the knowledge of the Company threatened, which would reasonably be expected to
have a Material Adverse Effect.
5.15 Subsidiaries/Investments.
As of the Closing Date, the Company has no Material Subsidiaries other than
those specifically disclosed in part (a) of Schedule 5.15 hereto and has no
equity investments in excess of $l00,000,000 in any other Person (excluding
Subsidiaries) other than those specifically disclosed in part (b) of Schedule
5.15.
5.16 Insurance.
To the best knowledge of the Company, the properties of the Company and its
Material Subsidiaries are insured with financially sound and reputable
insurance or reinsurance companies, in such amounts, with such deductibles and
covering such risks as are believed by the Company to be adequate in the
exercise of its reasonable business judgment.
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5.17 Full Disclosure.
None of the representations or warranties made by the Company in the Loan
Documents as of the date such representations and warranties are made or deemed
made, and none of the statements contained in any exhibit, financial report or
statements or certificate furnished by or on behalf of the Company in
connection with the Loan Documents, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which
they are made, not misleading as of the time when made or delivered.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
6.01 Financial Statements.
The Company shall deliver to the Administrative Agent, with sufficient
copies for each requesting Lender:
(a) as soon as available, but not later than the date which is 120
days after the end of each fiscal year, a copy of the Company's Annual
Report on Form 10K as filed with the SEC, and accompanied by the opinion of
a nationally-recognized independent public accounting firm ("Independent
Auditor"), which opinion shall not be a qualified opinion or limited
because of a restricted or limited examination by the Independent Auditor
of any material portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 60 days after the end of
each of the first three fiscal quarters of each fiscal year, a copy of the
Company's Form 10Q as filed with the SEC; and
(c) promptly, copies of all financial statements and reports that the
Company sends to its shareholders, and copies of all Form 8K's that the
Company or any Subsidiary files with the SEC.
6.02 Certificates; Other Information.
The Company shall furnish to the Administrative Agent, with sufficient
copies for each requesting Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a Compliance Certificate executed
by a Responsible Officer on behalf of the Company which certifies that no
Default has occurred and is continuing (except as described therein); and
(b) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Material Subsidiary as
the Administrative Agent may from time to time reasonably request and which
relates to the ability of the Company (or any other Loan Party) to perform
under this Agreement or any other Loan Document.
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6.03 Notices.
Except as contemplated by Section 6.03(d), upon obtaining knowledge of any
event described below, the Company shall promptly notify the Administrative
Agent (but, in no event later than five days after obtaining such knowledge):
(a) of the occurrence of any Default;
(b) of any of the following matters of which a Responsible Officer
obtains knowledge that would result in a Material Adverse Effect: (i) breach
or non-performance of, or any default under, a Contractual Obligation of the
Company or any Material Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any Material
Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the
Company or any Material Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any of the following events affecting the
Company or any ERISA Affiliate which would reasonably be expected to result
in a Material Adverse Effect, and deliver to the Administrative Agent a copy
of any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the
Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension Liability of any
Pension Plan;
(iii) the adoption of, or the commencement of contributions to, any
Plan subject to Section 412 of the Code by the Company or any ERISA
Affiliate; or
(iv) the adoption of any amendment to a Plan subject to Section 412
of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability;
(d) of any material change in accounting policies or financial reporting
practices other than those required or permitted by GAAP by the Company or
any of its consolidated Subsidiaries which would reasonably be expected to
materially affect the Company's consolidated financial reports (it being
understood that the disclosure of such changes in the financial statements
described in Section 6.01 shall satisfy the requirements of this clause
(d)); and
(e) of any change in the Company's Debt Rating, or the fact that such
Debt Ratings are no longer being publicly announced by S&P or Xxxxx'x,
provided that any failure by the Company to give notice of such change or
such unavailability of ratings shall not affect the payment obligations
hereunder of any Loan Party.
Each notice under this Section shall be accompanied by a written statement
by a Responsible Officer setting forth details of the occurrence referred to
therein, and stating what action the Company or any affected Subsidiary
proposes to take with respect thereto and at what time. Each notice under
Section 6.03(a) shall describe with particularity any and all provisions of
this Agreement or other Loan Document (if any) that have been breached or
violated.
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6.04 Preservation of Corporate Existence, Etc.
The Company shall, and shall cause each Material Subsidiary and each other
Loan Party to:
(a) except as permitted by Section 7.03, preserve and maintain in full
force and effect its corporate existence and good standing under the laws
of its state or jurisdiction of incorporation;
(b) to the extent practicable, using reasonable efforts, preserve and
maintain in full force and effect all governmental rights, privileges,
qualifications, permits, licenses and franchises necessary or desirable in
the normal conduct of its business except (x) when the non-preservation and
non-maintenance of such rights, privileges, qualifications, permits,
licenses or franchises would reasonably be expected not to have a Material
Adverse Effect or (y) in connection with transactions permitted by Section
7.03 and sales of assets permitted by Section 7.02
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect;
and
(d) to the extent practicable, using reasonable efforts, preserve or
renew all of its registered patents, trademarks, trade names and service
marks, except when non-preservation or non-renewal of such patents,
trademarks, trade names or service marks would reasonably be expected not
to have a Material Adverse Effect.
6.05 Maintenance of Property.
The Company shall maintain, and shall cause each Material Subsidiary to
maintain, and preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear and casualty loss
excepted and make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect.
6.06 Insurance.
The Company shall maintain, and shall cause each Material Subsidiary to
maintain, with financially sound and reputable insurers or independent
reinsurers, insurance with respect to its properties and business against loss
or damage of the kinds and in the amounts determined by the Company to be
necessary or desirable in the exercise of its reasonable business judgment.
6.07 Payment of Obligations.
The Company shall, and shall cause each Material Subsidiary to, pay and
discharge as the same shall become due and payable, all their respective
obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in
good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by the Company or such Material Subsidiary
or unless the failure to pay or discharge would not have a Material Adverse
Effect;
44
(b) all lawful claims (except for such claims which are contested by
the Company or Material Subsidiary in good faith) which, if unpaid, would
by law become a Lien upon its property except when the failure to pay or
discharge would not have a Material Adverse Effect; and
(c) all Indebtedness, as and when due and payable (except for such
Indebtedness which is contested by the Company or any Material Subsidiary
in good faith or where the failure to pay or discharge would not reasonably
be expected to result in a Material Adverse Effect), but subject to any
subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.08 Compliance with Laws.
The Company shall comply, and shall cause each Material Subsidiary to
comply, in all material respects with all Laws of any Governmental Authority
having jurisdiction over it or its business, except such as may be contested in
good faith or as to which a bona fide dispute may exist or where the failure to
comply would not have a Material Adverse Effect.
6.09 Compliance with ERISA.
The Company shall, and shall cause each of its ERISA Affiliates to: (a)
maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law except where
non-compliance would not reasonably be expected to result in a Material Adverse
Effect; and (b) make all required contributions to any Plan subject to Section
412 of the Code except where failure to make any contribution would not
reasonably be expected to result in a Material Adverse Effect.
6.10 Inspection of Property and Books and Records.
The Company shall maintain and shall cause each Material Subsidiary to
maintain accurate and proper books of record and account of all material
financial transactions and matters involving the assets and business of the
Company and such Material Subsidiary. Subject to reasonable safeguards to
protect confidential information, the Company shall permit representatives of
the Administrative Agent to discuss the affairs and finances of the Company
with its Responsible Officers, all at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company; provided, however, when an Event of Default
exists the Company shall permit, and shall cause each Material Subsidiary to
permit, representatives of the Administrative Agent to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, all at
the expense of the Company at any time during normal business hours and with
reasonable advance notice. The Administrative Agent shall promptly advise the
Lenders of its findings after any such visit, inspection, examination or
discussion.
6.11 Environmental Laws.
The Company shall, and shall cause each Material Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all
Environmental Laws except where the failure to comply would not have a Material
Adverse Effect.
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6.12 Use of Proceeds.
The Company and the other Loan Parties shall use the proceeds of the Loans
for general corporate purposes including, without limitation, working capital
and Acquisitions, not in contravention of any Laws or of this Agreement.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Required
Lenders waive compliance in writing:
7.01 Limitation on Liens.
The Company shall not, and shall not suffer or permit any Material
Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to
exist any Lien upon or with respect to any part of its property, whether now
owned or hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or any Subsidiary on
the Closing Date;
(b) any Lien created under any Loan Document to secure the Obligations;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 6.07;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings,
which proceedings are reasonably anticipated to have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other social security legislation;
(f) Liens on the property of the Company or any of its Subsidiaries
securing (i) the non-delinquent performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, (ii) contingent
obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course
of business, provided all such Liens in the aggregate would not (even if
enforced) cause a Material Adverse Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which do not in
any case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the businesses of the Company and
its Subsidiaries taken as a whole;
46
(h) Liens on assets of Subsidiaries acquired by the Company after the
date of this Agreement, provided, however, that such Liens existed at the
time of the respective acquisition and were not incurred in anticipation
thereof;
(i) purchase money security interests on any property acquired or held
by the Company or its Subsidiaries in the ordinary course of business,
securing Indebtedness incurred or assumed for the purpose of financing all
or any part of the cost of acquiring such property; provided that (i) such
Lien attaches solely to the property so acquired in such transaction, and
(ii) the principal amount of the Indebtedness secured thereby does not
exceed 100% of the cost of such property;
(j) Liens securing obligations in respect of capital leases on assets
subject to such leases;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations
promulgated by the FRB, and (ii) such deposit account is not intended by
the Company or any Material Subsidiary to provide collateral to the
depository institution except in either case when such deposit accounts are
established or required in the ordinary course of business and would not
have a Material Adverse Effect; and
(l) Liens on Permitted Receivables subject to a Permitted Receivables
Financings;
(m) Liens on real property (i) acquired after the Closing Date by the
Company or any Subsidiary, provided that such Liens existed at the time
such property was acquired and were not created in anticipation thereof or
(ii) acquired or held by the Company or its Subsidiaries in the ordinary
course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such
property, provided that (x) such Liens attach solely to the property so
acquired in such transaction, and (y) the principal amount of the
Indebtedness secured thereby does not exceed 100% of the cost of such
property; and
(n) Notwithstanding the provisions of Sections 7.01(a) through (m),
there shall be permitted Liens on property (including Liens which would
otherwise be in violation of such subsections), provided that the sum of
the aggregate Indebtedness of the Company and its Subsidiaries secured by
all Liens permitted under this Section 7.01(n), excluding the Liens
permitted under Sections 7.01(a) through (m), shall not exceed an amount
equal to 3% of the Company's total consolidated assets as shown on its
consolidated balance sheet for its most recent prior fiscal quarter.
7.02 Disposition of Assets.
Except as otherwise permitted by any other provision of this Agreement,
the Company shall not, and shall not suffer or permit any Material Subsidiary
to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) any property (including
accounts and notes receivable, with or without recourse) or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus equipment,
all in the ordinary course of business;
47
(b) dispositions or spinoffs on reasonable commercial terms and for
fair value or which would not have a Material Adverse Effect, provided that
dispositions or spinoffs of the capital stock of any Material Subsidiary or
any Borrowing Subsidiary to a non-Affiliated Person shall not be permitted
under this Section 7.02(b) unless after giving effect thereto the affected
Material Subsidiary or Borrowing Subsidiary would be a Wholly-Owned
Subsidiary;
(c) dispositions of property (including equity securities) between the
Company and any consolidated Subsidiary or among consolidated Subsidiaries;
(d) dispositions of Permitted Receivables pursuant to Permitted
Receivables Financings, provided that the aggregate Investment Amount with
respect thereto shall not exceed $75,000,000 at any time; and
(e) other dispositions of property during any fiscal year (excluding
dispositions permitted under Sections 7.02(a) through (d)) whose net book
value in the aggregate shall not exceed 3% of the Company's total
consolidated assets as shown on its consolidated balance sheet for its most
recent prior fiscal year.
7.03 Consolidations and Mergers.
The Company shall not, and shall not suffer or permit any Material
Subsidiary or any Borrowing Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Person may merge with the Company, provided that the Company
shall be the continuing or surviving corporation;
(b) any Subsidiary may merge (i) with the Company, provided that the
Company shall be the continuing or surviving corporation, or (ii) with any
one or more Subsidiaries, provided that (A) if any transaction shall be
between a Subsidiary which is not a Wholly-Owned Subsidiary and a
Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be the
continuing or surviving Person and (B) if any transaction shall be between
a Subsidiary which is not a Borrowing Subsidiary and a Borrowing
Subsidiary, the Borrowing Subsidiary shall be the continuing or surviving
Person (unless in connection therewith, the Company shall have complied
with Section 2.04(b) to terminate such Borrowing Subsidiary);
(c) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary; and
(d) any Subsidiary may merge with any Person and any Person may merge
with any Subsidiary, provided that after giving effect thereto (i) the
resulting Person shall be a Wholly-Owned Subsidiary and (ii) if a Borrowing
Subsidiary is a party to such merger, the resulting Person is a Borrowing
Subsidiary (unless in connection therewith, the Company shall have complied
with Section 2.04(b) to terminate such Borrowing Subsidiary).
7.04 Margin Stock.
The Company shall not, and shall not suffer or permit any Subsidiary to,
use any portion of the Loan proceeds, directly or indirectly, in a manner which
violates any applicable Law and which would
48
have a Material Adverse Effect (provided that this Section 7.04 shall not be
deemed to permit the use of Loan proceeds in violation of any Law applicable to
any Lender, including Regulation T, U or X of the FRB). Notwithstanding the
foregoing, at no time shall more than 25% of the value (as determined by any
reasonable method) of the Company's assets consist of Margin Stock.
7.05 Restricted Payments.
During the existence of a Default, the Company shall not, and shall not
suffer or permit any Subsidiary to, declare or make any Restricted Payment;
provided that this Section 7.05 shall not restrict (a) any Restricted Payments
to a Loan Party, (b) any such Restricted Payments made by any Subsidiary (other
than a Borrowing Subsidiary) to the owners of capital stock or other equity
interests of such Subsidiary on a pro rata basis based on their relative
ownership interests), (c) the payment by the Company of dividends to its
shareholders provided that such dividend was declared when no Default existed
or (d) any such Restricted Payments permitted under any written benefit plans
of the Company or any Material Subsidiary now or hereafter existing so long as
such Restricted Payments do not exceed $10,000,000 in the aggregate during the
existence of any such Default.
7.06 ERISA.
The Company shall not, and shall not suffer or permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect; or (b)
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA and which would reasonably be expected to result in a Material Adverse
Effect.
7.07 Accounting Changes.
Subject to Section 1.03, the Company shall not, and shall not suffer or
permit any Material Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP, or
change the fiscal year of the Company or of any such Material Subsidiary, if
such change would reasonably be expected to result in a Material Adverse Effect.
7.08 Consolidated Interest Coverage Ratio.
The Company shall not permit, as of the last day of any fiscal quarter of
the Company, the Consolidated Interest Coverage Ratio to be less than 2.0 to
1.0.
7.09 Consolidated Leverage Ratio.
The Company shall not permit, as of the last day of any fiscal quarter of
the Company, the Consolidated Leverage Ratio to be greater than 0.6 to 1.0.
7.10 Consolidated Fixed Charge Coverage Ratio.
The Company shall not permit, as of the last day of any fiscal year of the
Company, the Consolidated Fixed Charge Coverage Ratio to be less than 1.50 to
1.0.
7.11 Subsidiary Indebtedness.
The Company shall not permit, as of the last day of any fiscal quarter, the
aggregate Indebtedness (excluding intercompany Indebtedness among the Company
and its Subsidiaries or between Subsidiaries)
49
of its consolidated Subsidiaries to exceed 25% of shareholders' equity as set
forth on the consolidated balance sheet of the Company and its consolidated
Subsidiaries as determined in accordance with GAAP and as reflected in its most
recent annual or quarterly financial statements delivered to the Administrative
Agent under Section 6.01. For purposes of this Section 7.11, the term
"Indebtedness" shall be deemed to exclude (i) Indebtedness of a Person which
becomes a Subsidiary after the date hereof, provided that such excluded
Indebtedness existed at the time such Person became a Subsidiary and was not
created in anticipation thereof, and (ii) outstanding Loans of Borrowing
Subsidiaries under this Agreement.
7.12 Transactions with Affiliates.
The Company shall not, and shall not suffer or permit any Material
Subsidiary to, enter into any transaction of any kind with any Affiliate of the
Company, whether or not in the ordinary course of business, other than on fair
and reasonable terms substantially as favorable (considered as a whole) to the
Company or such Material Subsidiary as would be obtainable by the Company or
such Material Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to (a) unless otherwise expressly prohibited by this Agreement,
transactions between or among the Company and any of its Subsidiaries or
between and among any Subsidiaries, (b) compensation, indemnification and other
benefits and perquisites paid or made available to any Affiliate of the Company
who is an officer, director, employee, or consultant of the Company or a
Subsidiary (including reimbursement of out-of-pocket expenses and provision of
directors' and officers' liability insurance), (c) transactions under any
benefit plan of the Company, (d) transactions approved by a majority of the
independent members of the board of directors of the Company (or a committee
composed of independent members of the board of directors) (e) any Restricted
Payments not prohibited by Section 7.05 and (f) other transactions between the
Company or a Material Subsidiary and an Affiliate of the Company not otherwise
permitted by this Section 7.12, provided that all such transactions do not
involve aggregate consideration paid to affiliates in excess of $1,000,000 in
any fiscal year of the Company.
7.13 Burdensome Agreements.
The Company shall not, and shall not suffer or permit any Subsidiary to,
enter into any Contractual Obligation (other than this Agreement or any other
Loan Document) that expressly limits the ability of any Subsidiary to make
Restricted Payments, directly or indirectly, to the Company or any other Loan
Party except for (a) encumbrances or restrictions existing under or by reason
of this Loan Agreement, (b) those imposed by applicable Laws, (c) agreements in
existence and as in effect on the Closing Date (and any refundings,
replacements or refinancing of the same not in excess of the then outstanding
amount of the obligations thereunder and containing restrictions which are not
less favorable to the Company and its Subsidiaries), (d) restrictions
applicable to special purpose Subsidiaries pursuant to documentation governing
any Permitted Receivables Financing, (e) restrictions applicable to any Person
acquired by the Company or any Subsidiary provided that such restrictions (i)
existed at the time of such Acquisition, (ii) were not incurred in
contemplation thereof and (iii) are not applicable to any other Person and (f)
pursuant to customary restrictions and conditions contained in any agreement
relating to any sale of assets not prohibited hereunder pending the
consummation of such sale.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.
Any of the following shall constitute an Event of Default:
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(a) Non-Payment. The Company or any other Loan Party fails to pay, (i)
within one Business Day after the same becomes due, any amount of principal of
any Loan, or (ii) within five Business Days after the same becomes due, any fee
payable under Section 2.09 or interest (including any Guaranteed Obligations)
or under any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
Company, any other Loan Party or any other Material Subsidiary made or deemed
made herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by the Company, any other
Loan Party or any other Material Subsidiary, or any Responsible Officer,
furnished at any time under this Agreement, or in or under any other Loan
Document, is incorrect in any material respect on or as of the date made or
deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any term,
covenant or agreement contained in any of Sections 6.04(with respect to any
Loan Party's existence), 7.03, 7.05, 7.06, 7.08, 7.09, 7.10 or 7.11; or
(d) Other Defaults. The Company or any other Loan Party fails to perform
or observe any other material term or covenant contained in this Agreement or
any other Loan Document (other than as provided in Sections 8.01(a),(b) and
(c)), and such default shall continue unremedied for a period of 30 days after
the earlier of (i) the date upon which a Responsible Officer knew of such
failure or (ii) the date upon which written notice thereof is received by the
Company from the Administrative Agent; or
(e) Cross-Default. (i) The Company or any Subsidiary fails to perform or
observe any condition or covenant, or any other event shall occur or condition
shall exist, under any agreement or instrument relating to any Indebtedness of
the Company or any Subsidiary having an aggregate principal amount (including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $50,000,000, and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document
on the date of such failure if (A) the effect of such failure, event or
condition is to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity or (B) such failure is the failure to pay
principal or interest on the final stated maturity date of such Indebtedness;
or (ii) if there shall occur any default or event of default, however
denominated, under any cross default provision under any agreement or
instrument relating to any Indebtedness of the Company or any Subsidiary of
more than $50,000,000 and the effect of such default or event of default is to
permit such Indebtedness to be declared to be due and payable prior to its
stated maturity; or
(f) Insolvency; Voluntary Proceedings. The Company, any other Loan Party
or any Material Subsidiary (i) ceases to be solvent, or generally fails to pay
its debts, or admits in writing its inability to pay its debts as they become
due, subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Company, any other Loan Party or any Material
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Company's or any
such Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, stayed, vacated or fully bonded within 60 days
after commencement, filing, issuance or levy; (ii) the Company, any other Loan
Party or any Material Subsidiary admits the material allegations of a petition
against it in any Insolvency Proceeding, or an order for relief (or similar
order under non-U.S. law involving a material portion of the Company's or such
Subsidiary's total assets) is ordered in any
51
Insolvency Proceeding involving the Company or any such Subsidiary; or (iii)
the Company, any other Loan Party or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for itself
or a substantial portion of its property or business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $50,000,000;
(ii) the aggregate amount of Unfunded Pension Liability among all Pension Plans
at any time exceeds $50,000,000; or (iii) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $50,000,000; or
(i) Monetary Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, non-interlocutory decrees or arbitration awards is
entered against the Company, any other Loan Party or any Material Subsidiary
involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, of $50,000,000 or more, and the same shall not have been vacated,
discharged, stayed or appealed within the applicable period for appeal from the
date of entry thereof or paid within ten Business Days after the same becomes
non-appealable; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
is entered against the Company, any other Loan Party or any Subsidiary which
has or would reasonably be expected to have a Material Adverse Effect; or
(k) Change of Control. There occurs any Change of Control. For purposes
of this Section 8.01(k), a "Change of Control" shall occur if any Person
(including any syndicate or group deemed to be a "person" under Section
13(d)(3) of the Exchange Act), other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any Family Member, is or
becomes the beneficial owner, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of shares of
capital stock of the Company entitling such Person to exercise 25% (or, if
greater, the aggregate percentage held by the Family Members) or more of the
total voting power of all shares of capital stock of the Company entitled to
vote generally in the election of directors. "Family Member" means (i) any of
Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, their
estates, their respective descendants or spouses, trusts for their benefit or
Persons Controlled by any of the foregoing and (ii) any syndicate or group
deemed to be a "person" under Section 13(d)(3) of the Exchange Act which is
Controlled by any person or entity referred to in clause (i); or
(l) Invalidity of Loan Documents. Any Loan Document (including the
Guarantee provided by the Company pursuant to Section 2.14), at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases
to be in full force and effect; or any Loan Party affirmatively asserts the
invalidity of any Loan Document.
8.02 Remedies Upon Event of Default.
If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:
52
(a) declare the Commitment of each Lender to make Loans to be
terminated, whereupon such Commitments shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Loan Parties; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an Event of Default specified in
Section 8.01(f) or (g), the obligation of each Lender to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, in each case without further act of the Administrative
Agent or any Lender.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the United States
Bankruptcy Code or any other insolvency statute.
8.03 Application of Funds.
After the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to
the Lenders (including Attorney Costs and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, ratably among the Lenders in proportion to
the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Company or as otherwise required by Law.
53
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
9.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
9.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable to any Lender or Participant
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Loan Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender or participant to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party or any Affiliate thereof.
9.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent,
54
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or
refusing to take any action under any Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other
Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to
the proposed Closing Date specifying its objection thereto.
9.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default, except with respect to defaults in the payment
of principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Company referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default." The Administrative Agent will notify the Lenders of its receipt of
any such notice. The Administrative Agent shall take such action with respect
to such Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Company and the other Loan Parties hereunder. Each
Lender also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action
55
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
9.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Loan Parties. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all other Obligations and the resignation
of the Administrative Agent.
9.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Loan Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Loan Party or such Affiliate) and acknowledge that the
Administrative Agent shall be under no obligation to provide such information
to them. With respect to its Loans, Bank of America shall have the same rights
and powers under this Agreement as any other Lender and may exercise such
rights and powers as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
9.09 Successor Administrative Agent.
The Administrative Agent may, or at the request of the Company (so long as
no Default exists) shall, resign as Administrative Agent upon 30 days' notice
to the Lenders. If the Administrative Agent resigns under this Agreement, the
Company shall (unless a Default exists, in which case the Required Lenders
shall) appoint from among the Lenders a successor administrative agent for the
Lenders. If no
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successor administrative agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Company, a successor administrative
agent from among the Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.04 and
10.05 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.
9.10 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Loan
Parties) shall be entitled and empowered, by intervention in such proceeding or
otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative
Agent and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 2.09 and 10.04) allowed
in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.
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9.11 Other Agents; Arrangers and Managers.
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "book manager," "lead manager," "arranger," "lead arranger"
or "co-arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders
or other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Company or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders (or by the Administrative Agent upon the written consent of the
Required Lenders) and the Company or the applicable Loan Party, as the case may
be, and received by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such amendment, waiver or consent
shall:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent
of such Lender;
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other material amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan, or (subject to clause (iii) of the second proviso to this
Section 10.01) any fees or other material amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary to amend the definition of "Default Rate" or to
waive any obligation of the Loan Parties to pay interest at the Default Rate;
(d) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender directly affected thereby;
(e) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage
of Lenders required to amend, waive or otherwise modify any rights hereunder
or make any determination or grant any consent hereunder, without the
written consent of each Lender;
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(f) amend the definition of "Permitted Foreign Currency" without the
written consent of each Lender; or
(g) release the Company from its Guarantee pursuant to Section 2.14
without the written consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent in addition to the Lenders
required above, affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document; (ii) Section 10.07(h) may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or
(subject to subsection (c) below) electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Company or any other Loan Party or the
Administrative Agent, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule
10.02 or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Company and the
Administrative Agent.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto
and (ii) (A) if delivered by hand or by courier, when signed for by or on
behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent pursuant to
Article II shall not be effective until actually received by such Person and
notices and other communications to the Company pursuant to Article VIII shall
not be effective until actually received by such Person. In no event shall a
voicemail message be effective as a notice, communication or confirmation
hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on all Loan Parties, the Administrative Agent and the Lenders. The
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Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided,
however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section
6.02, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices) purportedly given by a
Responsible Officer of the Company or any other Loan Party even if (i)
such notices were not made in a manner specified herein, were incomplete
(except for Committed Loan Notices that are deemed invalid pursuant to
Section 2.02) or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Loan Parties shall
indemnify each Agent-Related Person and each Lender from all losses,
costs, expenses and liabilities resulting from the reliance by such Person
on each notice purportedly given by or on behalf of the Loan Parties;
provided that such indemnity shall not be available to the extent that
such losses, costs, expenses and liabilities resulted from the gross
negligence or willful misconduct of such Agent-Related Person or Lender.
All telephonic notices to and other communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties
hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any other rights, remedies, powers and
privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes.
The Loan Parties agree (a) to pay or reimburse the Administrative Agent
for all reasonable out-of-pocket costs and expenses incurred in connection with
any amendment, waiver, consent or other modification of the provisions of this
Agreement or any other Loan Document, and the administration of the
transactions contemplated hereby and thereby, including all Attorney Costs but
excluding costs and expenses incurred in connection with transactions described
in Section 10.07 unless such transactions result from the Company's exercise of
its rights in Section 10.16, and (b) to pay or reimburse the Administrative
Agent and each Lender for all out-of-pocket costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes (provided that the payment
of Taxes and Other Taxes shall be subject to Section 3.01) related thereto, and
other out-of-pocket expenses incurred by the Administrative Agent and the cost
of independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 10.04
shall be payable within ten Business Days after written demand therefor.
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The agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.05 Indemnification.
(a) Whether or not the transactions contemplated hereby are consummated,
the Loan Parties shall indemnify and hold harmless each Agent-Related Person,
each Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the "Indemnitees") from and
against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Indemnitee in any
way directly relating to or directly arising out of or directly in connection
with (i) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (ii) any Commitment or Loan or the use
or proposed use of the proceeds therefrom, or (iii) any actual or prospective
claim, litigation, investigation or proceeding directly relating to any of the
foregoing and brought by any Person other than an Indemnitee, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation
or proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"), in all cases,
whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements have resulted from the gross negligence or willful
misconduct of such Indemnitee. No party hereto shall have any liability for any
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). All amounts due under this Section
10.05 shall be payable within ten Business Days after demand therefor and
receipt by the Company of reasonably appropriate supporting documentation
therefor. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.
(b) An Indemnitee shall give prompt written notice to the Company of any
actual or prospective claim, litigation, investigation or proceeding that is,
in each case, commenced or asserted in writing and in respect of which
indemnification may be sought hereunder (a "Third Party Claim"), provided that
the omission to so notify the Company will not relieve a Loan Party from any
liability it may have under this Section 10.05 unless and to the extent the
Loan Party shall have been materially damaged by the delay in notification or
the failure to be notified. Each Indemnitee shall assist the Loan Parties in
the defense of any such Third Party Claim by providing reasonable access to the
Indemnitee or relevant officers, directors, employees and agents of the
Indemnitee, as the case may be, including for purposes of giving testimony, and
to relevant books and records of the Indemnitee. The indemnifying Loan Party
shall have the right to, and shall at the request of the Indemnitee,
participate in, and assume the defense of, any Third Party Claim at its own
expense using counsel mutually acceptable to the Indemnitee and such Loan
Party. In any such Third Party Claim which a Loan Party has participated in or
assumed the defense of, the Indemnitee shall have the right to retain separate
counsel, but the Attorney Costs of such counsel shall be at the expense of the
Indemnitee unless the named parties in such Third Party Claim (including any
impleaded parties) include both a Loan Party and the Indemnitee and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. No Loan Party shall be
liable under this Section 10.05 for any settlement of any Third Party Claim
effected without its consent.
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10.06 Payments Set Aside.
To the extent that any payment by or on behalf of the any Loan Party is
made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof (or the Dollar Equivalent amount thereof) is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such set-off had not occurred, and (b) each Lender severally agrees to
pay to the Administrative Agent upon demand its applicable share of any amount
so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect, in the
applicable currency of such recovery or payment.
10.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Company may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of pledge or
assignment of a security interest subject to the restrictions of
subsection (f) or (i) of this Section, or (iv) to an SPC in accordance
with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed
to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that (i) except in the case of an
assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender, the aggregate amount
of the Commitment (which for this purpose includes Loans outstanding
thereunder) subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Company otherwise
consents (each such consent not to be unreasonably withheld or delayed);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned,
except that this clause (ii) shall not apply to rights in respect of Bid
Loans; (iii) any assignment of a Commitment must be approved by the
Administrative Agent (such approval not to be unreasonably withheld or
delayed) unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall
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execute and deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05
with respect to facts and circumstances occurring prior to the effective
date of such assignment). Upon request, the Loan Parties shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply
with this subsection 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 subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Loan Parties, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Loan Parties, 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
Company and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Loan Parties or the Administrative Agent, sell participations to any
Person (other than (1) a natural person, (2) the Company or any of the
Company's Affiliates or Subsidiaries or (3) any competitor of the Company
and its Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans owing to it); provided that
(i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Loan Parties,
the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement.
(e) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Note, if any) to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(f) As used herein, the following term has the following meaning:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender
(which Affiliate is a commercial bank having capital of at least
$100,000,000); and (c) any other Person (other than a natural person)
approved in writing by (i) the Administrative Agent and (ii) unless an
Event of Default has occurred and is continuing, the Company (each such
approval not to be unreasonably
63
withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include (1) the Company or any of the
Company's Affiliates or Subsidiaries or (2) any competitor of the Company
and its Subsidiaries.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Company (an "SPC") the option
to provide all or any part of any Committed Loan that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Committed Loan, and (ii) if an SPC elects not to exercise such option
or otherwise fails to make all or any part of such Committed Loan, the
Granting Lender shall be obligated to make such Committed Loan pursuant to
the terms hereof. Each party hereto hereby agrees that (i) neither the
grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of
the Loan Parties under this Agreement (including its obligations under
Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any
provision of any Loan Document, remain the lender of record hereunder. The
making of a Committed Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such
Committed Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto, solely in its capacity as such, hereby
agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in
full of all outstanding commercial paper or other senior debt of any SPC,
it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency,
or liquidation proceeding under the laws of the United States or any State
thereof. Notwithstanding anything to the contrary contained herein, any
SPC may (i) with notice to, but without prior consent of the Company and
the Administrative Agent and with the payment of a processing fee of
$3,500, assign all or any portion of its right to receive payment with
respect to any Committed Loan to the Granting Lender and (ii) disclose on
a confidential basis any non-public information relating to its funding of
Committed Loans to any rating agency, commercial paper dealer or provider
of any surety or Guarantee or credit or liquidity enhancement to such SPC.
The Granting Lender shall indemnify the Loan Parties from any losses,
costs or expenses directly arising out of or directly resulting from the
use of an SPC as contemplated by this Section 10.07(g).
10.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors on a
need-to-know basis (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority to which the Administrative Agent
or a Lender is subject; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, provided that the
Administrative Agent or such Lender will promptly notify the Company of any
such required disclosure and shall cooperate with the Company, at the Company's
expense, in obtaining a suitable order protecting the confidentiality of such
information; (d) to any other
64
party to this Agreement; (e) to the extent reasonably necessary in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder; (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to any Person (other than a competitor of the Company and its
Subsidiaries that is (i) an Eligible Assignee of or Participant in, or a
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) a direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the prior
written consent of the Company; or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section
or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Company. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and
the Borrowings. For the purposes of this Section, "Information" means all
information received from any Loan Party relating to any Loan Party or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party; provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified in writing at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
10.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Company or any other Loan Party, any such notice being waived by the
Company (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured or denominated in
a currency different from that of the applicable deposit or indebtedness. Each
Lender agrees promptly to notify the Company and the Administrative Agent after
any such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
10.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Loan Parties. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread
65
in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
10.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
10.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Borrowing, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied.
10.14 Severability.
If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
10.15 Tax Forms.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two true and accurate duly signed completed
copies of either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from U.S.
withholding tax on all payments to be made to such Foreign Lender by a
Loan Party pursuant to this Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Foreign
Lender by a Loan Party pursuant to this Agreement) or such other
66
evidence satisfactory to the Company and the Administrative Agent that
such Foreign Lender is entitled to an exemption from U.S. withholding
tax on all payments of principal, interest, and other amounts owing
under this Agreement or any of the Loan Documents, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from
time to time, each such Foreign Lender shall (a) promptly submit to
the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be
adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States
laws and regulations to avoid, or such evidence as is satisfactory to
the Company and the Administrative Agent of any available exemption
from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Loan Parties
pursuant to this Agreement, (b) promptly notify the Administrative
Agent of any change in circumstances which would modify or render
invalid any previously claimed exemption or reduction, and (c) take
such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Loan Parties make any
deduction or withholding for taxes from amounts payable to such
Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall
deliver to the Administrative Agent on the date when such Foreign
Lender ceases to act for its own account with respect to any portion
of any such sums paid or payable, and at such other times as may be
necessary in the determination of the Administrative Agent (in the
reasonable exercise of its discretion), (a) two true and accurate duly
signed completed copies of the forms or statements required to be
provided by such Lender as set forth above, to establish the portion
of any such sums paid or payable with respect to which such Lender
acts for its own account that is not subject to U.S. withholding tax,
and (b) two true and accurate duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate
or statement of exemption required under the Code, to establish that
such Lender is not acting for its own account with respect to a
portion of any such sums payable to such Lender.
(iii) The Loan Parties shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (a) with respect to
any Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a) or
(b) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the
date such Lender became a Lender or ceased to act for its own account
with respect to any payment under any of the Loan Documents, nothing
in this Section 10.15(a) shall relieve the Loan Parties of their
obligations to pay any amounts pursuant to Section 3.01 in the event
that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is
no longer properly entitled to deliver forms, certificates or other
evidence at a subsequent date establishing the fact that such Lender
or other Person for the account of which such Lender receives any sums
payable under any of the Loan Documents is not subject to withholding
or is subject to withholding at a reduced rate.
67
(iv) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any
of the Loan Documents with respect to which the Loan Parties are not
required to pay additional amounts under this Section 10.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is
a "United States person" within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Administrative Agent two true and accurate duly
signed completed copies of IRS Form W-9. If such Lender fails to deliver
such forms, then the Administrative Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Administrative
Agent or the Company did not properly withhold or backup withhold, as the
case may be, any tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Administrative
Agent or the Company, as the case may be, therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent under this Section, and costs
and expenses (including Attorney Costs) of the Administrative Agent or the
Company, as the case may be. The obligation of the Lenders under this
Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
10.16 Replacement of Lenders.
Under any circumstances set forth herein providing that the Company shall
have the right to replace a Lender as a party to this Agreement, the Company
may, upon notice to such Lender and the Administrative Agent, replace such
Lender by causing such Lender to assign its Commitment (with the assignment fee
to be paid by the Company in such instance) pursuant to Section 10.07(b) to one
or more other Lenders or Eligible Assignees procured by the Company; provided,
however, that if the Company elects to exercise such right with respect to any
Lender pursuant to Section 3.06(b), it shall be obligated to replace all
Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Loan Parties shall (y) pay in full all principal, interest,
fees and other amounts owing to such Lender through the date of replacement
(including any amounts payable pursuant to Section 3.05), and (z) release such
Lender from its obligations under the Loan Documents. Any Lender being replaced
shall execute and deliver an Assignment and Assumption with respect to such
Lender's Commitment and outstanding Loans.
10.17 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF SUCH STATE,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, THE
ADMINISTRATIVE AGENT AND EACH
68
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH LOAN PARTY, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH LOAN PARTY, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
(c) EACH BORROWING SUBSIDIARY WHICH IS NOT INCORPORATED OR ORGANIZED
UNDER THE LAWS OF ANY STATE OF THE UNITED STATES OF AMERICA OR THE
DISTRICT OF COLUMBIA HEREBY IRREVOCABLY APPOINTS THE COMPANY, WITH AN
ADDRESS ON THE DATE HEREOF AS SPECIFIED ON SCHEDULE 10.02 (OR SUCH OTHER
PERSONS AS MAY FROM TIME TO TIME BE IDENTIFIED TO THE ADMINISTRATIVE AGENT
IN WRITING AND IS DEEMED SATISFACTORY TO THE ADMINISTRATIVE AGENT) AS ITS
TRUE AND LAWFUL ATTORNEY-IN-FACT (THE "SERVICE OF PROCESS AGENT") IN ITS
NAME, PLACE AND STEAD TO ACCEPT SERVICE OF ANY AND ALL WRITS, SUMMONS AND
OTHER LEGAL PROCESS AND ANY SUCH ENFORCEMENT PROCEEDING BROUGHT IN THE
STATE OF ILLINOIS AND AGREES THAT SERVICE BY THE MAILING, OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT THE
ADDRESS FOR NOTICES PURSUANT TO SECTION 10.02, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING, OF ANY ENFORCEMENT PROCEEDING MAY BE
MADE UPON SUCH SERVICE OF PROCESS AGENT AND THAT IT WILL TAKE SUCH ACTION
AS NECESSARY TO CONTINUE SUCH APPOINTMENT IN FULL FORCE AND EFFECT OR TO
APPOINT ANOTHER SUCH SERVICE OF PROCESS AGENT SATISFACTORY TO THE
ADMINISTRATIVE AGENT FOR SERVICE OF PROCESS. THE COMPANY HEREBY
IRREVOCABLY ACCEPTS SUCH APPOINTMENT AND AGREES TO SERVE IN THE CAPACITY
OF SERVICE OF PROCESS AGENT.
10.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY 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 TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
69
10.19 Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Loan
Parties in respect of any such sum due from them to the Administrative Agent or
the Lenders hereunder or under the other Loan Documents shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum
adjudged to be so due in the Judgment Currency, the Administrative Agent may in
accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is
less than the sum originally due to the Administrative Agent from the Loan
Parties in the Agreement Currency, the Loan Parties agree, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to the Loan
Parties (or to any other Person who may be entitled thereto under applicable
law).
10.20 Subordination of Intercompany Indebtedness.
The Loan Parties hereby agree that all intercompany Indebtedness owing
from the Company to any Borrowing Subsidiary (whether now existing or hereafter
created) is hereby subordinated to the payment in full of the Obligations. The
Company shall be permitted to make payments with respect to such Indebtedness
other than during the existence of a Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
COMPANY: XXXXXXX-XXXXXX COMPANY
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
BORROWING SUBSIDIARIES: XXXXXXX-XXXXXX USA, INC.
XXXXX BEAUTY COMPANY, INC.
BEAUTY SYSTEMS GROUP, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
BANK OF AMERICA, N.A., as a Lender
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
BANK ONE, NA, as a Lender
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
CITIBANK, NA, as a Lender
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
