Exhibit 10.1
EUR 250,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of September 14, 2005
Among
EUROPE CHEMICAL HOLDINGS C.V.
NOVEON HOLDINGS FRANCE S.A.S.
NOVEON EUROPE BVBA
as Borrowers
and
THE LUBRIZOL CORPORATION
as Guarantor
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
ABN AMRO BANK N.V.
as Administrative Agent
----------
ABN AMRO BANK N.V., CALYON, CITIGROUP GLOBAL MARKETS INC., AND
FORTIS CAPITAL CORP.
as Mandated Lead Arrangers and Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms .................................. 1
SECTION 1.02. Computation of Time Periods ............................ 15
SECTION 1.03. Accounting Terms ....................................... 15
ARTICLE II
SECTION 2.01. The Advances ........................................... 15
SECTION 2.02. Making the Advances .................................... 16
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit ........................................... 17
SECTION 2.04. Fees ................................................... 18
SECTION 2.05. Termination or Reduction of the Commitments ............ 18
SECTION 2.06. Repayment of Advances .................................. 19
SECTION 2.07. Interest on Advances ................................... 19
SECTION 2.08. Interest Rate Determination ............................ 20
SECTION 2.09. Optional Conversion of Advances ........................ 21
SECTION 2.10. Prepayments of Advances ................................ 21
SECTION 2.11. Increased Costs ........................................ 22
SECTION 2.12. Illegality ............................................. 23
SECTION 2.13. Payments and Computations .............................. 23
SECTION 2.14. Taxes .................................................. 25
SECTION 2.15. Sharing of Payments, Etc. .............................. 26
SECTION 2.16. Evidence of Debt ....................................... 26
SECTION 2.17. Use of Proceeds ........................................ 27
SECTION 2.18. Professional Market Party Representation ............... 27
SECTION 2.19. Credit Transactions in France .......................... 27
SECTION 2.20. Credit Obligations of Borrowers Several ................ 27
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 .. 27
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary ............................... 29
SECTION 3.03. Conditions Precedent to Each Borrowing ................. 30
SECTION 3.04. Determinations Under Section 3.01 ...................... 30
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Guarantor ........ 30
SECTION 4.02. Representations and Warranties of the Borrowers ........ 32
ARTICLE V
SECTION 5.01. Affirmative Covenants .................................. 33
SECTION 5.02. Negative Covenants ..................................... 35
SECTION 5.03. Financial Covenants .................................... 39
ARTICLE VI
SECTION 6.01. Events of Default ...................................... 39
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Default ........................................ 41
SECTION 6.03. Remedies Against the General Partners .................. 41
ARTICLE VII
SECTION 7.01. Guaranty ............................................... 42
SECTION 7.02. Guaranty Absolute ...................................... 42
SECTION 7.03. Waivers and Acknowledgments ............................ 43
SECTION 7.04. Subrogation ............................................ 43
SECTION 7.05. Subordination .......................................... 44
SECTION 7.06. Continuing Guaranty; Assignments ....................... 44
ARTICLE VIII
SECTION 8.01. Authorization and Action ............................... 45
SECTION 8.02. Agent's Reliance, Etc. ................................. 45
ii
SECTION 8.03. ABN AMRO and Affiliates ................................ 45
SECTION 8.04. Lender Credit Decision ................................. 46
SECTION 8.05. Indemnification ........................................ 46
SECTION 8.06. Successor Agent ........................................ 46
SECTION 8.07. Other Agents ........................................... 47
ARTICLE IX
SECTION 9.01. Amendments, Etc. ....................................... 47
SECTION 9.02. Notices, Etc. .......................................... 47
SECTION 9.03. No Waiver; Remedies .................................... 48
SECTION 9.04. Costs and Expenses ..................................... 48
SECTION 9.05. Right of Set-off ....................................... 50
SECTION 9.06. Binding Effect ......................................... 50
SECTION 9.07. Assignments and Participations ......................... 50
SECTION 9.08. Confidentiality ........................................ 52
SECTION 9.09. Governing Law .......................................... 53
SECTION 9.10. Execution in Counterparts .............................. 53
SECTION 9.11. Jurisdiction, Etc. ..................................... 53
SECTION 9.12. Designated Borrowers ................................... 53
SECTION 9.13. No Liability of the Issuing Banks ...................... 54
SECTION 9.14. Patriot Act ............................................ 54
SECTION 9.15. Judgment ............................................... 54
SECTION 9.16. Waiver of Jury Trial ................................... 55
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Calculation of the Mandatory Cost
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel for the Guarantor
Exhibit D-2 - Form of Opinion of Special Belgian Counsel for the Borrowers
Exhibit D-3 - Form of Opinion of Special French Counsel for the Borrowers
Exhibit D-4 - Form of Opinion of Special Netherlands Counsel for the Borrowers
Exhibit D-5 - Form of Opinion of Special Delaware Counsel for the General
Partners
Exhibit E - Form of Designation Letter
iv
FIVE YEAR CREDIT AGREEMENT
Dated as of September 14, 2005
EUROPE CHEMICAL HOLDINGS C.V., a commanditaire vennootschap organized
under the law of the Netherlands ("Europe Holdings"), NOVEON HOLDINGS FRANCE
S.A.S., a French societe par actions simplifee ("Noveon France"), and NOVEON
EUROPE BVBA, a besloten vennootschap met beperkte aansprakelijkheid organized
under the law of Belgium and having its registered office at Xxxxxxxxxxxxxxxx
00, B-2260 Westerlo, registered under RPR Enterprise number Turnhout 0408454528
("Noveon Europe", and together with Europe Holdings and Noveon France, the
"Initial Borrowers"), THE LUBRIZOL CORPORATION, an Ohio corporation (the
"Guarantor"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") and initial issuing banks (the "Initial Issuing Banks")
listed on the signature pages hereof, ABN AMRO BANK N.V., CALYON, CITIGROUP
GLOBAL MARKETS INC., and FORTIS CAPITAL CORP. as mandated lead arrangers and
bookrunners, and ABN AMRO BANK N.V. ("ABN AMRO"), as administrative agent (the
"Agent") for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" means the Guarantor's acquisition of the Target on June
3, 2004.
"Advance" means an advance by a Lender to a Borrower as part of a
Borrowing under Section 2.01(a) and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means (a) for Dollars, the account of the Agent
maintained by the Agent at ABN AMRO N.V. at its office at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx, ABA: 000000000, Account No. 650001178941,
Account Name: Corporate Credit Services, Ref: Lubrizol, Attention: Xxxxx
Xxxxxxxx and (b) for Euros, the account of the Agent maintained by the
Agent at ABN AMRO Bank N.V. New York Branch, Swift XXXXXX00, Account No.
0000000000, For Further Credit, ABNAUS4CFXO, Account Name ABN AMRO Bk New
York Br Treasury, Ref: Lubrizol, or such other account of the Agent as is
designated in writing from time to time by the Agent to the Borrowers and
the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Commitment Fee Rate" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
Public Debt Rating Applicable
S&P/Xxxxx'x Commitment Fee Rate
--------------------- -------------------
Level 1
BBB+ or Baa1 or above 0.09625%
Xxxxx 0
BBB or Baa2 0.11375%
Xxxxx 0
XXX- xx Xxx0 0.14000%
Xxxxx 0
BB+ or Ba1 or lower 0.29750%
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Eurocurrency Rate Advances Base Rate Advances
--------------------- -------------------------- ---------------------
Xxxxx 0
BBB+ or Baa1 or above 0.275% 0.000%
Level 2
BBB or Baa2 0.325% 0.000%
Xxxxx 0
XXX- xx Xxx0 0.400% 0.000%
Xxxxx 0
BB+ or Ba1 or lower 0.850% 0.000%
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by ABN AMRO in New
York, New York, from time to time, as ABN AMRO's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by ABN AMRO on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by ABN
AMRO from three New York certificate of deposit dealers of recognized
standing selected by ABN AMRO in the sound exercise of its
commercially reasonable determination, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System
2
(or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for ABN AMRO with respect to liabilities
consisting of or including (among other liabilities) three-month U.S.
dollar non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment rates
estimated by ABN AMRO for determining the then current annual
assessment payable by ABN AMRO to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of
ABN AMRO in the United States; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars that bears
interest as provided in Section 2.07(a)(i).
"Belgian Borrowers" means Noveon Europe and any other Designated
Subsidiary that is incorporated in Belgium that shall become a Borrower
hereunder pursuant to Section 9.12 and "Belgian Borrower" means any one of
them.
"Borrowers" means, collectively, the Initial Borrowers and each
Designated Subsidiary that shall become a Borrower hereunder pursuant to
Section 9.12.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by the Lenders.
"Borrowing Minimum" means, in respect of Advances denominated in
Euros, EUR 10,000,000 and in respect of Advances denominated in Dollars,
$10,000,000.
"Borrowing Multiple" means, in respect of Advances denominated in
Euros, EUR 1,000,000 and in respect of Advances denominated in Dollars,
$1,000,000.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in Chicago, Illinois and, if the applicable
Business Day relates to any Eurocurrency Rate Advances, on which dealings
are carried on in the London interbank market and banks are open for
business in London and in the case of an Advance denominated in Euro, on
which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open.
"Confidential Information" means information that any Loan Party
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is generally
available to the public or that is available to the Agent or such Lender on
a non-confidential basis from a source other than a Loan Party that is, to
the knowledge of the Agent or such Lender, not acting in breach of any
confidentiality agreement.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, (a) Consolidated net
income, plus (b) to the extent deducted in determining such Consolidated
net income, the sum of, on a Consolidated basis and without duplication:
(i) interest expense, (ii) income tax expense, (iii) depreciation expense,
(iv) amortization expense, (v) depletion expense, (vi) extraordinary,
unusual or non-recurring non-cash losses, including goodwill expense and
non-cash losses from the sale, exchange, transfer or other disposition of
property of the Guarantor or its Subsidiaries and the related tax effects
in accordance with GAAP, (vii) extraordinary, unusual or non-recurring cash
losses, expenses or charges incurred or paid in calendar year 2004, and all
fees and expenses incurred in connection with any acquisition consummated
in calendar year 2004 (including the Acquisition), minus (c) to the extent
included in determining such Consolidated net income, the sum of, on a
Consolidated basis and without duplication: (i) the income of any Person
(other than a wholly owned Subsidiary of the Guarantor) in which any Person
other than the Guarantor or any of its
3
Subsidiaries has a joint interest or a partnership interest or other
ownership interest, except to the extent of the amount of dividends or
other distributions actually paid to the Guarantor or any of its
Subsidiaries by such Person during such period, (ii) gains from the sale,
exchange, transfer or other disposition of property or assets of the
Guarantor and its Subsidiaries (other than inventory sold in the ordinary
course of business), and related tax effects in accordance with GAAP, (iii)
any other extraordinary, unusual or non-recurring gains or other income not
from the continuing operations of the Guarantor and its Subsidiaries, and
related tax effects in accordance with GAAP and (iv) the income of any
Subsidiary of the Guarantor to the extent that the declaration or payment
of dividends or similar distributions by that Subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary. For the purpose of
calculating Consolidated EBITDA for any period, if during such period the
Guarantor or any Subsidiary shall have made an acquisition of any Person,
Consolidated EBITDA for such period shall be calculated after giving pro
forma effect thereto as if such acquisition occurred on the first day of
such period.
"Consolidated Tangible Net Assets" means, as at any date, the
aggregate amount of Consolidated assets (less depreciation, amortization
and other applicable reserves and other items deductible therefrom under
GAAP) after deducting therefrom (a) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of
the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed), (b) all goodwill, tradenames,
trademarks, patents and other intangibles, in each case net of applicable
amortization and (c) appropriate adjustments on account of minority
interests of other Persons holding stock of the Guarantor's Subsidiaries,
all as would be shown on a Consolidated balance sheet of the Guarantor and
its Subsidiaries and determined in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables not overdue by more than 120 days incurred in the ordinary course
of such Person's business; provided that trade payables which are overdue
by more than 120 days shall not be included so long as payment of such is
being contested in good faith and by proper proceedings), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all Invested Amounts, (h)
all Debt of others referred to in clauses (a) through (g) above or clause
(i) below and other payment obligations guaranteed directly or indirectly
in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person ("Guaranteed Debt") through an agreement (1) to
pay or purchase such Guaranteed Debt or to advance or supply funds for the
payment or purchase of such Guaranteed Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Guaranteed
Debt or to assure the holder of such Guaranteed Debt against loss, (3) to
supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (4) otherwise to
assure a creditor against loss, and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt; provided, that Debt shall not include
transactions in the ordinary course of business by the Guarantor or its
directly or indirectly held Subsidiaries with customers and vendors in the
form of (x) commitments to lend or loans to customers that
4
are repayable either over an agreed period of time or at the time of
purchases by the customers of products of the Guarantor or its Subsidiaries
and (y) advances made to vendors that are treated either repayable over a
period of time or as advance payments for products to be purchased by the
Guarantor or its Subsidiaries from the vendor.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Designated Subsidiary" means any Foreign Subsidiary, directly or
indirectly wholly owned by the Guarantor and designated after the date of
this Agreement for borrowing privileges hereunder pursuant to Section 9.12.
"Designation Letter" means a letter entered into by a Designated
Subsidiary, the Borrowers, Guarantor and the Agent, in substantially the
form of Exhibit E hereto, pursuant to which such Designated Subsidiary
shall become a Borrower hereunder in accordance with Section 9.12.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the Agent.
"Domestic Subsidiary" means each Subsidiary of the Guarantor organized
in the United States or a political subdivision thereof.
"Dutch Banking Act" means the Dutch Act on the Supervision of the
Credit System 1992 (Wet toezicht kredietwezen 1992), as amended from time
to time.
"Dutch Borrowers" means Europe Holdings and any other Designated
Subsidiary that is incorporated in The Netherlands that shall become a
Borrower hereunder pursuant to Section 9.12 and "Dutch Borrower" means any
one of them.
"Dutch Central Bank" means De Nederlandsche Bank N.V.
"Dutch Exemption Regulation" means the Dutch Banking Act Exemption
Regulation 1992 (Vrijstellingsregeling Wtk 1992) dated 26 June 2002 of the
Ministry of Finance of The Netherlands, as promulgated in connection with
the Dutch Banking Act and as amended from time to time.
"Dutch Policy Guidelines" means the 2005 Dutch Central Bank's Dutch
Policy Guidelines (issued in relation to the Dutch Exemption Regulation)
dated 29 December 2004 (Beleidsregel 2005 kernbegrippen markttoetreding en
handhaving Wtk 1992) as amended from time to time.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
and (iii) any other Person (unless such Person is taking delivery of an
assignment in connection with physical settlement of a credit derivative
transaction) approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is effected in
accordance with Section 9.07, the Borrowers, such approval not to be
unreasonably withheld or delayed; provided, however, that neither the
Guarantor nor an Affiliate of the Guarantor shall qualify as an Eligible
Assignee; provided, further that (x) any assignment of Advances made to any
French Borrower (including the Note or Notes evidencing such Advances and
5
participations in Letters of Credit issued at the request of such French
Borrower) and Commitments to make Advances to, or issue Letters of Credit
at the request of, Noveon France (or any French Designated Subsidiary that
becomes a Borrower hereunder) under this Agreement shall only be assigned
or transferred to institutions that are authorized to carry out credit
transactions in France or which may legally acquire rights under loans to a
French borrower under applicable banking monopoly laws and regulations of
France and (y) any assignment of Advances made to any Belgian Borrower
(including the Note or Notes evidencing such Advances and participations in
Letters of Credit issued at the request of such Belgian Borrower) and
Commitments to make Advances to, or issue Letters of Credit at the request
of, Noveon Europe (or any Belgian Designated Subsidiary that becomes a
Borrower hereunder) under this Agreement shall only be assigned or
transferred to institutions that are authorized to carry out credit
transactions in Belgium or which may legally acquire rights under loans to
a Belgian borrower under applicable banking laws and regulations of
Belgium.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages, and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equivalent" (i) in Euros of Dollars on any date, means the quoted
spot rate at which the Agent's principal office in London offers to
exchange Dollars for Euros in London prior to 11:00 A.M. (London time) on
such date and (ii) in Dollars of Euros on any date, means the quoted spot
rate at which the Agent's principal office in London offers to exchange
Euros for Dollars in London prior to 11:00 A.M. (London time) on such date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Guarantor's controlled group, or under common
control with the Guarantor, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Guarantor or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Guarantor
6
or any ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions for the imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period, the rate appearing on
Page 248 of the Moneyline Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided
on such page of such Service, as determined by the Agent from time to time
for purposes of providing quotations of interest rates applicable to
deposits in Euro by reference to the Banking Federation of the European
Union Settlement Rates for deposits in Euro) at approximately 10:00A.M.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08).
"Euro" and "EUR" mean the lawful currency of the European Union as
constituted by the Treaty of Rome, which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Advance denominated in Dollars, the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Moneyline Telerate Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
Dollars are offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period or, (ii) in the case of any Advance denominated in Euros,
the EURIBO Rate by (b) a percentage equal to 100% minus the Eurocurrency
Rate Reserve Percentage for such Interest Period. If the Moneyline Telerate
Markets Page 3750 (or any successor page) is unavailable, the Eurocurrency
Rate for any Interest Period for each Eurocurrency Rate Advance comprising
part of the same Borrowing shall be determined by the Agent on the basis of
7
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means an Advance denominated in Euro or
Dollars that bears interest as provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Facility" means the Revolving Credit Facility or the Letter of Credit
Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Foreign Assets" means those assets of the Guarantor or any of its
Subsidiaries that (a) consist of capital stock or other equity interests of
Foreign Subsidiaries, (b) are assets owned by Foreign Subsidiaries or (c)
are located outside of the United States.
"Foreign Subsidiary" means each Subsidiary of the Guarantor organized
in a jurisdiction other than the United States or a political subdivision
thereof.
"French Borrowers" means Noveon France and any other Designated
Subsidiary that is incorporated in France that shall become a Borrower
hereunder pursuant to Section 9.12 and "French Borrower" means any one of
them.
"GAAP" has the meaning specified in Section 1.03.
"General Partners" means Performance Materials II LLC and Performance
Materials I Inc., in their capacities as general partners (beherend
vennoten) of Europe Holdings.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guaranty" means the guaranty of the Guarantor set forth in Article
VII.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant, under any
Environmental Law.
8
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, with respect to Eurocurrency Rate Advances, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (x) until January 1, 2006, any period of five days
or more and (y) thereafter, one, two, three or six months, and subject to
clause (c) of this definition, nine or twelve months, as such Borrower may,
upon notice received by the Agent not later than 11:00 A.M. (Chicago,
Illinois time, or, subsequent to November 1, 2005, London time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, that no more than three Interest Periods of less than one month
may be outstanding at any time and; provided, further, that:
(a) such Borrower may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) in the case of any such Borrowing, such Borrower shall not be
entitled to select an Interest Period having a duration of nine or
twelve months unless, by 2:00 P.M. (Chicago, Illinois time, or,
subsequent to November 1, 2005, London time) on the third Business Day
prior to the first day of such Interest Period, each Lender notifies
the Agent that such Lender will be providing funding for such
Borrowing with such Interest Period (the failure of any such Lender to
so respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested duration of
such Interest Period); provided that, if any or all of the Lenders
object to the requested duration of such Interest Period, the duration
of the Interest Period for such Borrowing shall be one, two, three or
six months, as specified by the Borrower requesting such Borrowing in
the applicable Notice of Borrowing as the desired alternative to an
Interest Period of nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder."
"Invested Amounts" means the amounts invested by investors that are
not Affiliates of the Guarantor in connection with a Permitted Receivables
Financing and paid to the Guarantor or any of its Subsidiaries, as reduced
by the aggregate amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities or all or substantially all of the
assets of such Person, any capital contribution to such Person or any other
9
investment in such Person, including, without limitation, any arrangement
pursuant to which the investor incurs Debt of the types referred to in
clauses (g) and (h) of the definition of "Debt" in respect of such Person.
"Issuing Bank" means an Initial Issuing Bank or any Eligible Assignee
to which a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable
Lending Office (which information shall be recorded by the Agent in the
Register), for so long as the Initial Issuing Bank or Eligible Assignee, as
the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Collateral Account" means an interest-bearing cash
collateral account to be established and maintained by the Agent, over
which the Agent shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means the Initial Lenders, each Issuing Bank and each Person
that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit Agreement" shall have the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means as to any Issuing Bank (a) the
amount set forth opposite such Issuing Bank's name on Schedule I hereto
under the caption "Letter of Credit Commitment" or (b) if such Issuing Bank
has entered into one or more Assignment and Acceptances, the amount set
forth for such Issuing Bank in the Registrar maintained by the Agent
pursuant to Section 9.07(d) as such Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time and (b) EUR 25,000,000, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, including, without limitation, the lien or
retained security title of a conditional vendor and any security interest
or mortgage granted in real property and, in the case of a Borrower or
Designated Subsidiary organized under the laws of, or property located in,
Belgium, any mortgage (hypotheek / hypotheque), pledge (pand /
nantissement), privilege (voorrecht / privilege), retention right
(eigendomsvoorbehoud / droit de retention/reserve de propriete), any real
surety (zakelijke zekerheid / surete reelle) and any transfer by way of
security (overdracht ten titel van zekerheid / transfert a titre de
garantie) or any mandates granted in this respect.
"Loan Documents" means this Agreement, the Notes and the other L/C
Related Documents.
"Loan Parties" means the Guarantor and each Borrower.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule II attached hereto.
"Marketable Securities" means any of the following, to the extent
owned by the Guarantor or any of its Subsidiaries free and clear of all
Liens and having a maturity of not greater than 360 days from the
10
date of acquisition thereof: (a) readily marketable direct obligations of
the Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates of
deposit of or time deposits with any commercial bank that is a Lender or a
member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c), is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion, (c) commercial paper in an
aggregate amount of no more than $10,000,000 per issuer outstanding at any
time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-1" (or the then equivalent
grade) by Moody's or "A-1" (or the then equivalent grade) by S&P, (d) fully
collateralized repurchase agreements having a term of not more than 30 days
and covering securities described in subsection (a) above entered into with
any Lender or bank meeting the qualifications specified in (b) above or (e)
investments in money market funds substantially all of the assets of which
are comprised of securities described in subsection (a) through (d) above.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise) or results of operations of
the Guarantor and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise) or operations of the Guarantor
and its Subsidiaries taken as a whole, (b) the rights and remedies of the
Agent or any Lender under this Agreement or any Note, (c) the ability of
any Borrower to perform its obligations under this Agreement or any Note or
(d) the ability of the Guarantor to perform its obligations under this
Agreement.
"Material Domestic Subsidiary" means each Domestic Subsidiary of the
Guarantor (other than Receivables Subsidiaries) that has either (a)
Consolidated assets with a value of not less than 2% of the total value of
the assets of the Guarantor and its Subsidiaries, taken as a whole, or (b)
Consolidated revenues of not less than 2% of the total revenues of the
Guarantor and its Subsidiaries, taken as a whole.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Guarantor or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and at least one Person other than the
Guarantor and the ERISA Affiliates or (b) was so maintained and in respect
of which the Guarantor or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Note" means a promissory note of a Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.16 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advances
made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
11
"Permitted Receivables Financing" means the limited recourse sale (or
other transfer) of accounts receivable by the Guarantor or any of its
Subsidiaries in connection with the securitization thereof, which sale (or
other transfer) is non-recourse to the extent customary in securitizations
and consistent with past practice and which is upon terms and conditions
reasonably satisfactory to the Agent; provided that the sum of, without
duplication, (a) the aggregate Invested Amounts and (b) the outstanding
principal amount of obligations secured by receivables (and related assets)
for all such Permitted Receivables Financings shall not exceed $250,000,000
at any time outstanding.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"PMP" means a professional market party as defined in the Dutch
Exemption Regulation and/or the Dutch Policy Guidelines, which includes,
among others:
(a) banks, insurance companies, securities firms, collective
investment institutions or pension funds that are (i) supervised or
licensed under Dutch law or (ii) established in a European Economic
Area member state (other than The Netherlands), Monaco, Puerto Rico,
Saudi Arabia, Turkey, South Korea, the United States, Japan,
Australia, Canada, Mexico, New Zealand or Switzerland, and are subject
to prudential supervision in their country of establishment, including
their subsidiaries provided such subsidiaries are also subject to
prudential supervision (either directly or indirectly through
consolidated supervision at the level of their parent company);
(b) collective investment institutions which offer their shares
or participations exclusively to professional investors (or, as far as
foreign investment institutions are concerned, to such investors
located in The Netherlands) or are otherwise exempt under the
Exemption Regulation pursuant to the Act on the Supervision of
Investment Institutions (Vrijstellingsregeling Wet toezicht
beleggingsinstellingen) of The Netherlands;
(c) the Dutch government (xx Xxxxx der Nederlanden), the Dutch
Central Bank (De Nederlandsche Bank N.V.), a foreign governmental body
being part of a central government, a foreign central bank, Dutch or
foreign regional, local or other decentralized governmental
institutions, international treaty organizations and supranational
organizations;
(d) any enterprise or entity with total assets of at least EUR
500,000,000 (or the equivalent thereof in another currency) according
to its balance sheet at the end of the financial year preceding the
date it extends credit hereunder to a Dutch Borrower, the date it
becomes a party hereto pursuant to Section 9.07 or the date such
enterprise or entity acquires an interest in any loan made to a Dutch
Borrower;
(e) any Person with a net equity (eigen vermogen) of at least EUR
10,000,000 (or the equivalent thereof in another currency) according
to its balance sheet at the end of the financial year preceding the
date it becomes a party hereto pursuant to Section 9.07 or the date it
acquires an interest in any loan made to a Dutch Borrower and who or
which has been active in the financial markets on average twice a
month over a period of at least two consecutive years preceding such
date;
(f) any person or entity who or which is subject to supervision
by a regulatory authority in any country in order to lawfully operate
in the financial markets (which includes authorized credit
institutions, investment firms, other authorized or regulated
financial institutions,
12
insurance companies, collective investment schemes and their
management companies, pension funds and their management companies,
and commodity dealers);
(g) any Person that engages in a regulated activity on the
financial markets but which is not subject to supervision by a
regulatory authority (which includes without limitation: exempt credit
institutions, investment firms, financial institutions, insurance
companies, collective investment schemes and their management
companies, pension funds and their management companies, commodity
dealers and special purpose vehicles);
(h) any entity whose corporate purpose is solely to invest in
securities (which includes, without limitation, hedge funds);
(i) any company or legal entity that meets at least two of the
following three criteria according to its most recent consolidated or
nonconsolidated annual accounts: (i) an average number of employees
during the financial year of at least 250; (ii) total assets of at
least EUR 43,000,000; or (iii) an annual net turnover of at least EUR
50,000,000;
(j) any company having its registered office in The Netherlands
that does not meet at least two of the three criteria mentioned in (i)
above and which has (i) expressly requested the Dutch Authority for
the Financial Markets (Stichting Autoriteit Financiele Markten; the
"AFM") to be considered a qualified investor (within the meaning of
Directive 2003/71/EC) and (ii) been entered on the register of
qualified investors maintained by the AFM;
(k) any natural person who is resident in The Netherlands if such
person meets at least two of the following criteria:
(i) such person has carried out transactions of a
significant size on the financial markets at an average frequency
of at least 10 per quarter over the previous four quarters;
(ii) the size of such person's securities portfolio exceeds
EUR 500,000; and
(iii) such person works or has worked for at least one year
in the financial sector in a professional position which requires
knowledge of investment in securities;
provided further that such person has: (i) expressly requested the AFM
to be considered as a qualified investor and (ii) been entered on the
register of qualified investors maintained by the AFM; and
(l) such other entities as may be designated by the competent
Netherlands authorities after the date hereof by any amendment of the
applicable regulations.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Guarantor or, if either of S&P or Moody's has issued more than one such
rating, the lowest such rating issued by such rating agency. For purposes
of the foregoing, (a) if only one of S&P and Moody's shall have in effect a
Public Debt Rating, the Applicable Margin and the Applicable Commitment Fee
Rate shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Commitment Fee Rate will be set in
accordance with Level 4 under the definition of "Applicable Margin" or
"Applicable Commitment Fee Rate", as the case may be; (c) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; (d) if S&P or Moody's shall change
the basis on which ratings are established, each reference to the Public
Debt Rating announced by S&P or Moody's, as the case may be,
13
shall refer to the then equivalent rating by S&P or Moody's, as the case
may be; and (e) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin and Applicable Commitment
Fee Rate shall be based upon the higher rating, unless the lower of such
ratings is more than one level below the higher of such ratings, in which
case the Applicable Margin and the Applicable Commitment Fee Rate shall be
based upon the level that is one level above the lower of such ratings.
"Ratable Share" of any amount means, with respect to any Lender at any
time, the product of (a) a fraction, the numerator of which is the amount
of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate Revolving Credit Commitments at such
time and (b) such amount.
"Receivables Subsidiary" means a Domestic Subsidiary of the Guarantor
that has as its sole purpose to engage in, and engages solely in, Permitted
Receivables Financings permitted under this Agreement.
"Reference Banks" means ABN AMRO and Citibank, N.A. (London Branch).
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount (based on the
Equivalent in Euros at such time) of the Advances then outstanding, or, if
no such principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments.
"Revolving Credit Commitment" means as to any Lender (a) the Euro
amount set forth opposite such Lender's name on Schedule I hereto as such
Lender's "Revolving Credit Commitment" or (b) if such Lender has entered
into any Assignment and Acceptance, the Euro amount set forth for such
Lender in the Register maintained by the Agent pursuant to Section 9.07(d),
as such amount may be reduced pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount
of the Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Guarantor or any ERISA Affiliate and no Person other than the Guarantor and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Guarantor or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Subordinated Obligations" has the meaning specified in Section 7.05.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Target" means Noveon International, Inc.
14
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) September 14, 2010 and (b)
the date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"Type" refers to the distinction between Base Rate Advances and
Eurocurrency Rate Advances.
"Unused Revolving Credit Commitment" means, with respect to each
Lender at any time, (a) such Lender's Revolving Credit Commitment at such
time minus (b) the sum of (i) the aggregate principal amount of all
Advances (based on the Equivalent in Euros at such time) made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Ratable Share of the aggregate Available Amount of all
the Letters of Credit outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with generally accepted accounting principles in the United States,
as in effect from time to time ("GAAP"); provided that, if the Guarantor
notifies the Agent that the Guarantor requests an amendment to any provision
hereof as a result of a change in GAAP or in the application thereof on the
operation of such provision (or if the Agent notifies the Guarantor that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Advances to the Borrowers from time to time on any Business Day during the
period from the Effective Date until the date that is one month prior to the
Termination Date in an amount not to exceed at any time such Lender's Unused
Revolving Credit Commitment. Each Borrowing shall be in an amount not less than
the Borrowing Minimum or a Borrowing Multiple in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Revolving Credit Commitments. Within the limits of
each Lender's Revolving Credit Commitment, the Borrowers may borrow under this
Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section
2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a
"Letter of Credit") for the account of any Borrower from time to time on
any Business Day during the period from the Effective Date until one month
before the Termination Date in an aggregate Available Amount (i) for all
Letters of Credit issued by each Issuing Bank not to exceed at any time the
lesser of (x) the Letter of Credit Facility at such time and (y) such
Issuing Bank's Letter of Credit Commitment at such time and (ii) for each
such Letter of Credit not to exceed an amount equal to the aggregate Unused
Revolving Credit Commitments of the Lenders at such time. Each Letter of
Credit shall be in a face amount of EUR 1,000,000 or more. No Letter of
Credit shall have an expiration date (including all rights of the
applicable Borrower or the beneficiary to require renewal) later than the
earlier of (x) the date that is one year after the date of issuance thereof
or (y) 10 Business Days prior to the Termination Date. Within the limits
referred to above, the Borrowers may
15
request the issuance of Letters of Credit under this Section 2.01(b), repay
any Advances resulting from drawings thereunder pursuant to Section 2.03(c)
and request the issuance of additional Letters of Credit under this Section
2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be deemed
to constitute a Letter of Credit issued hereunder, and each Lender that is
an issuer of such a Letter of Credit shall, for purposes of Section 2.03,
be deemed to be an Issuing Bank for each such letter of credit, provided
that any renewal or replacement of any such letter of credit shall be
issued by an Issuing Bank pursuant to the terms of this Agreement.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.03(c), each Borrowing shall be made on notice, given not later than
(x) 4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate
Advances denominated in Euros, (y) 11:00 A.M. (Chicago, Illinois time, or,
subsequent to November 1, 2005, London time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurocurrency Rate Advances denominated in Dollars or (z) 11:00 A.M. (Chicago,
Illinois time, or, subsequent to November 1, 2005, London time) on the date of
the proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the applicable Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in writing,
or telecopier in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing consisting of Eurocurrency Rate Advances, initial Interest Period and
currency for each such Advance. Each Lender shall before 1:00 P.M. (Chicago,
Illinois time, or, subsequent to November 1, 2005, London time) on the date of
such Borrowing make available for the account of its Applicable Lending Office
to the Agent at the Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Section 3.03, the Agent
shall make such funds available to the Borrower that requested such Advance by
depositing such funds to such account as such Borrower shall specify.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrowers may not select Eurocurrency Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than the
Borrowing Minimum or if the obligation of the Lenders to make Eurocurrency
Rate Advances shall then be suspended pursuant to Section 2.08 or 2.12 and
(ii) the Eurocurrency Rate Advances may not be outstanding as part of more
than fifteen separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower giving such Notice. In the case of any Borrowing that the related
Notice of Borrowing specifies is to be comprised of Eurocurrency Rate
Advances, the Borrower giving such Notice shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Section
3.03, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is
not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender, contrary to its Commitment,
will not make available to the Agent such Lender's ratable portion of such
Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon
such assumption, make available to the applicable Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
so made such ratable portion available to the Agent, such Lender and such
Borrower severally agree to repay without duplication to the Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the
case of such Borrower, the higher of (A) the interest rate applicable at
the time to Advances comprising such Borrowing and (B) the cost of funds
incurred by the Agent in respect of such amount and (ii) in the case of
such Lender, (A) the Federal Funds Rate in the case of Advances denominated
in Dollars or (B) the cost of funds incurred by the Agent in respect of
such amount in the case of Advances denominated in Euros. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement.
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(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
Nothing herein shall be deemed to prejudice any rights which any Borrower
may have against a Lender as a result of any default by a Lender hereunder.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 1:00 P.M. (Chicago, Illinois time, or, subsequent
to November 1, 2005, London time) on the fifth Business Day prior to the date of
the proposed issuance of such Letter of Credit (or on such shorter notice as the
applicable Issuing Bank may agree), by any Borrower to any Issuing Bank, and
such Issuing Bank shall give the Agent, prompt notice thereof by telecopier.
Each such notice of issuance of a Letter of Credit (a "Notice of Issuance")
shall be by telephone, confirmed immediately in writing, or telecopier,
specifying therein the requested (i) date of such issuance (which shall be a
Business Day), (ii) Available Amount of such Letter of Credit, (iii) expiration
date of such Letter of Credit (which shall not be later than one year after the
issuance thereof), (iv) name and address of the beneficiary of such Letter of
Credit and (v) form of such Letter of Credit, and shall be accompanied by such
customary application and agreement for letter of credit as such Issuing Bank
may specify to the Borrower requesting such issuance for use in connection with
such requested Letter of Credit (a "Letter of Credit Agreement"). If the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion, such Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Borrower requesting such issuance at its office referred to in Section 9.02 or
as otherwise agreed with such Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Ratable Share of the aggregate amount
available to be drawn under such Letter of Credit. The Borrowers hereby
agree to each such participation. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally agrees to
pay to the Agent, for the account of such Issuing Bank, such Lender's
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the applicable Borrower on the date
made, or of any reimbursement payment required to be refunded to a Borrower
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Credit Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender further acknowledges and agrees that its
participation in each Letter of Credit will be automatically adjusted to
reflect such Lender's Ratable Share of the Available Amount of such Letter
of Credit at each time such Lender's Revolving Credit Commitment is amended
pursuant to an assignment in accordance with Section 9.07 or otherwise
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by any such Issuing Bank of an Advance, which, in
the case of a draft denominated in Euros, shall be a Base Rate Advance in
Dollars equal to the Equivalent of the amount of such draft and, in the
case of a draft denominated in Dollars, shall be a Base Rate Advance, in
the amount of such draft. Each Issuing Bank shall give prompt notice (and
such Issuing Bank will use its commercially reasonable efforts to deliver
such notice within one Business Day) of each drawing under any Letter of
Credit issued by it to the applicable Borrower and the Agent. Upon written
demand by such Issuing Bank, with a copy of such demand to the Agent, each
Lender shall pay to the Agent such Lender's Ratable Share of such
outstanding Advance, by making available for the account of its Applicable
Lending Office to the Agent for the account of such Issuing Bank, by
deposit to the Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Advance to be funded by
such Lender. Promptly after receipt thereof, the Agent shall transfer such
funds to such Issuing Bank. Each Lender agrees to fund its Ratable Share of
an outstanding Advance on (i) the Business Day on which demand therefor is
made by such Issuing Bank, provided that notice of such demand is given not
later than 11:00 A.M. (Chicago, Illinois time, or, subsequent to November
1,
17
2005, London time) on such Business Day, or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such
time. If and to the extent that any Lender shall not have so made the
amount of such Advance available to the Agent, such Lender agrees to pay to
the Agent forthwith on demand such amount together with interest thereon,
for each day from the date of demand by any such Issuing Bank until the
date such amount is paid to the Agent, at the Federal Funds Rate for its
account or the account of such Issuing Bank, as applicable. If such Lender
shall pay to the Agent such amount for the account of any such Issuing Bank
on any Business Day, such amount so paid in respect of principal shall
constitute a Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Advance made
by such Issuing Bank shall be reduced by such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to
the Agent on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit during the
preceding month and drawings during such month under all Letters of Credit
issued by it and (ii) to the Agent and each Lender on the first Business
Day of each calendar quarter a written report setting forth the average
daily aggregate Available Amount during the preceding calendar quarter of
all Letters of Credit issued by it.
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on
such date, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Commitment Fee. The Borrowers agree to pay to
the Agent for the account of each Lender a commitment fee on the average daily
unused portion of such Lender's Revolving Credit Commitment, from the Effective
Date in the case of each Initial Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date, at a rate per annum equal to
the Applicable Commitment Fee Rate in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 2005, and on the Termination Date.
(b) Letter of Credit Fees. (i) Each Borrower shall pay to the Agent
for the account of each Lender a commission on such Lender's Ratable Share
of the average daily aggregate Available Amount of all Letters of Credit
issued at its request and outstanding from time to time at a rate per annum
equal to the Applicable Margin for Eurocurrency Rate Advances in effect
from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing September 30, 2005, and on
the Termination Date, and after the Termination Date payable upon demand;
provided that the Applicable Margin shall increase by 2% upon the
occurrence and during the continuation of an Event of Default if the
Borrowers are required to pay default interest pursuant to Section 2.07(b).
(ii) Each Borrower shall pay to each Issuing Bank for its own
account such reasonable and customary fronting, issuance,
presentation, amendment and other processing fees as may from time to
time be agreed in writing between such Borrower and such Issuing Bank.
(c) Agent's Fees. The Borrowers shall pay to the Agent for its own
account the fees set forth in the fee letter between the Guarantor on
behalf of the Borrowers and the Agent or as may from time to time be
otherwise agreed in writing between the Borrowers and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments.
The Borrowers shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or permanently reduce ratably in part the
Unused Revolving Credit Commitments, provided that each partial reduction (i)
shall be in the aggregate amount of EUR 10,000,000 or an integral multiple of
EUR 1,000,000 in excess thereof and (ii) shall be made ratably among the Lenders
in accordance with their Revolving Credit Commitments. (b) The Borrowers shall
have the right, upon at least three Business Days' notice to the Agent, to
terminate in whole or permanently reduce ratably in part the unused Letter of
Credit Commitments, provided that, to the extent practicable, each partial
reduction shall be made ratably among the Issuing Banks in accordance with their
Letter of Credit Commitments.
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SECTION 2.06. Repayment. (a) Advances. Each Borrower shall repay to
the Agent for the ratable account of the Lenders on the Termination Date the
aggregate principal amount of the Advances made to it then outstanding.
(b) Letter of Credit Reimbursements. The obligations of the Borrowers
under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument, in each case, relating to any Letter of Credit
shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being
understood that any such payment by the Borrowers is without prejudice to,
and does not constitute a waiver of, any rights the Borrowers might have or
might acquire as a result of the payment by any Lender of any draft or the
reimbursement by the Borrowers thereof or any claim that a Borrower might
have under Section 9.13):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit, any Letter of Credit Agreement or any other
agreement or instrument, in each case, relating thereto (all of the
foregoing being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrowers in
respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other right
that the Borrowers may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank,
the Agent, any Lender or any other Person, whether in connection with
the transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guarantee, for all or any of the obligations of the Borrowers in
respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrowers or a guarantor.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. Each
Borrower shall pay interest on the unpaid principal amount of each Advance made
to it and owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time plus (z) the Mandatory Cost, if
any, payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurocurrency Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in
19
effect from time to time plus (z) the Mandatory Cost, if any, payable
in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurocurrency
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default that has not been waived, the Agent may, and upon
the request of the Required Lenders shall, require each Borrower to pay
interest ("Default Interest") on (i) the unpaid principal amount of each
Advance made to it and owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and on demand, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on Base Rate Advances pursuant to clause (a)(i)
above; provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Agent.
(c) Effective Global Rate. For the purposes of articles L. 313-4 of
the French Code Monetaire et Financier and articles L. 313-1, R. 313-1 and
R. 313-2 of the French Code de la Consommation, Noveon France acknowledges
that the effective global rate (taux effectif global or TEG) for the
Facility cannot be calculated as of the date hereof, primarily because of
the floating nature of the rate of interest applicable to the Advances and
the ability of the Borrowers to select the currency and the duration of
each Interest Period. However, Noveon France acknowledges that it has
received from the Agent, on the date hereof, a letter (the "TEG Letter")
containing an example of calculation of the effective global rate, based
upon certain assumptions as set out in the TEG Letter. In addition, in the
event that any French Designated Subsidiary becomes a Borrower hereunder,
the Designation Letter for such additional Borrower shall contain an
acknowledgement of such Designated Subsidiary similar to the
acknowledgement of Noveon France contained in this Section 2.07(c) and a
letter substantially in the same form as the TEG Letter. The TEG Letter and
any other letter delivered to a French Designated Subsidiary shall form an
integral part of this Agreement.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Borrowers and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching
deposits in the London inter-bank market at or about 11:00 A.M. (London
time) on the second Business Day before the making of a Borrowing in
sufficient amounts to fund their respective Advances as a part of such
Borrowing during its Interest Period or (ii) the Eurocurrency Rate for any
Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders, as determined in the exercise of each such Lender's
commercially reasonable discretion, of making, funding or maintaining their
respective Eurocurrency Rate Advances for such Interest Period, the Agent
shall forthwith so notify the Borrowers and the Lenders, whereupon (A) the
relevant Borrowers will, on the last day of the then existing Interest
Period therefor, (1) if such Eurocurrency Rate Advances are denominated in
Dollars, either (x) prepay such Advances or (y) Convert such Advances into
Base Rate Advances and (2) if such Eurocurrency Rate Advances are
denominated in Euros, either (x) prepay such Advances or (y) exchange such
Advances into an Equivalent amount of Dollars and Convert such Advances
into Base Rate Advances and (B) the obligation of the Lenders to make, or
to Convert Advances into, Eurocurrency Rate Advances shall be suspended
until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in
20
Section 1.01, the Agent will forthwith so notify such Borrower and the
Lenders and such Advances will automatically, on the last day of the then
existing Interest Period therefor, (i) if such Eurocurrency Rate Advances
are denominated in Dollars, Convert into Base Rate Advances and (ii) if
such Eurocurrency Rate Advances are denominated in Euros, be exchanged for
an Equivalent amount of Dollars and Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances denominated in Dollars comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than the
Borrowing Minimum, such Advances shall automatically Convert into Base Rate
Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default that has not been waived, (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advances are denominated in
Dollars, be Converted into Base Rate Advances and (B) if such Eurocurrency
Rate Advances are denominated in Euros, be exchanged for an Equivalent
amount of Dollars and be Converted into Base Rate Advances and (ii) the
obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 or, in the case of
Eurocurrency Rate Advances denominated in Euros, Page 248, is unavailable
and fewer than two Reference Banks furnish timely information to the Agent
for determining the Eurocurrency Rate for any Eurocurrency Rate Advances,
(i) the Agent shall forthwith notify the Borrowers and the
Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances,
(ii) each such Eurocurrency Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, (A) if
such Eurocurrency Rate Advance is denominated in Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in Euros, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be
Converted into a Base Rate Advance (or if such Advance is then a Base
Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances denominated in, or to Convert Advances into Eurocurrency Rate
Advances of, the affected currency shall be suspended until the Agent
shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. Any Borrower may on any
Business Day, upon notice given to the Agent not later than 11:00 A.M. (Chicago,
Illinois time, or, subsequent to November 1, 2005, London time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.08 and 2.12, Convert any or all Advances of one Type
comprising the same Borrowing made to it into Advances of the other Type;
provided, however, that any Conversion of Eurocurrency Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b), no Conversion of any Advances shall result
in more separate Borrowings than permitted under Section 2.02(b) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Lenders in accordance with their Commitments
under such Facility. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower
giving such notice.
SECTION 2.10. Prepayments of Advances. (a) Optional. Any Borrower may,
upon notice at least two Business Days prior to the date of such prepayment, in
the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (Chicago,
Illinois time, or, subsequent to November 1, 2005, London time) on the date of
such
21
prepayment, in the case of Base Rate Advances, to the Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given, such Borrower shall prepay the outstanding principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount not less than the Borrowing Minimum or a Borrowing
Multiple in excess thereof and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, the applicable Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Borrowers
that, on any interest payment date, the sum of (A) the aggregate principal
amount of all Advances denominated in Euros then outstanding plus (B) the
Equivalent in Euros (determined on the third Business Day prior to such
interest payment date) of the aggregate principal amount of all Advances
denominated in Dollars then outstanding exceeds 105% of the aggregate
Revolving Credit Commitments of the Lenders on such date, Europe Holdings
shall (or shall procure that the other Borrowers shall), as soon as
practicable and in any event within five Business Days after receipt of
such notice, subject to the proviso to this sentence set forth below,
prepay the outstanding principal amount of any Advances owing by the
Borrower in an aggregate amount sufficient to reduce such sum to an amount
not to exceed 100% of the aggregate Revolving Credit Commitments of the
Lenders on such date together with any interest accrued to the date of such
prepayment on the aggregate principal amount of Advances prepaid; provided
that if the aggregate principal amount of Base Rate Advances outstanding at
the time of such required prepayment is less than the amount of such
required prepayment, the portion of such required prepayment in excess of
the aggregate principal amount of Base Rate Advances then outstanding shall
be deferred until the earliest to occur of the last day of the Interest
Period of the outstanding Eurocurrency Rate Advances in an aggregate amount
equal to the excess of such required prepayment.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall
be made together with any interest accrued to the date of such
prepayment on the principal amounts prepaid and, in the case of any
prepayment of a Eurocurrency Rate Advance on a date other than the
last day of an Interest Period or at its maturity, any additional
amounts which the Borrower shall be obligated to reimburse to the
Lenders in respect thereof pursuant to Section 9.04(c). The Agent
shall give prompt notice of any prepayment required under this Section
2.10(b) to the Borrowers and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or agreeing to issue or of issuing or maintaining or participating in
Letters of Credit (excluding for purposes of this Section 2.11 any such
increased costs resulting from taxes (as to which Section 2.14 shall govern)),
then the Borrower to which such Eurocurrency Rate Advances were made or which
requested such Letters of Credit (or each Borrower ratably, in respect of unused
Revolving Credit Commitment) shall from time to time, without premium or
penalty, upon written demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided however,
that at such time such Lender shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements having provisions
similar to this Section. A certificate as to the amount of such increased cost,
submitted to such Borrower and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent error in the calculation of such amounts.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender (taking into
consideration such Lender's (or such controlling corporation's) policies
with respect to capital adequacy) and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to
lend or to issue or participate in Letters of Credit hereunder and other
commitments of this type or the issuance or maintenance of or participation
in the Letters of Credit (or similar contingent obligations), then, upon
written demand by such Lender (with a copy of such demand to the Agent),
each Borrower shall pay to the Agent for the account of such Lender, from
time to time as specified by such Lender, without premium or
22
penalty, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be allocable to
the existence of such Lender's commitment to lend or to issue or
participate in Letters of Credit hereunder or the issuance or maintenance
of or participation in the Letters of Credit, in an amount for each
Borrower determined in accordance with the amount of Advances made to it
and Letters of Credit issued at its request (or for each Borrower ratably,
in respect of unused Revolving Credit Commitment); provided, however, that
at such time such Lender shall be generally assessing such amounts on a
non-discriminatory basis against borrowers under agreements having
provisions similar to this Section. A certificate as to such amounts
submitted to the relevant Borrowers and the Agent by such Lender shall be
conclusive and binding for all purposes, absent error in the calculation of
such amounts.
(c) Each Lender will notify the relevant Borrowers of any change that
will entitle such Lender to compensation under this Section 2.11 as
promptly as practicable, but in any event within 90 days after such Lender
obtains knowledge thereof; provided, however, that, if any Lender fails to
give such notice within 90 days after it obtains knowledge of such change,
such Lender shall, with respect to compensation payable in respect of any
costs resulting from such change, only be entitled to payment for costs
incurred from and after the date that such Lender does give such notice
plus, if such change shall have retroactive effect, costs resulting from
such change during the period of retroactive effect thereof. Any Lender
claiming any additional amounts payable pursuant to this Section agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Eurocurrency
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Euros or Dollars or to fund or
maintain Eurocurrency Rate Advances in Euros or Dollars hereunder, (a) each
Eurocurrency Rate Advance will automatically, upon such demand (i) if such
Eurocurrency Rate Advance is denominated in Dollars, be Converted into a Base
Rate Advance and (ii) if such Eurocurrency Rate Advance is denominated in Euros,
be exchanged into an Equivalent amount of Dollars and be Converted into a Base
Rate Advance and (b) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrowers shall make
each payment hereunder, irrespective of any right of counterclaim or set-off,
not later than 11:00 A.M. (Chicago, Illinois time, or, subsequent to November 1,
2005, London time) on the day when due in Euros (except for Advances denominated
in Dollars, in which case such payments shall be made in Dollars) to the Agent,
by deposit of such funds to the Agent's Account in same day funds. The Guarantor
shall make each payment due by it hereunder, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (Chicago, Illinois time, or,
subsequent to November 1, 2005, London time) on the day when due in Euros
(except for guaranty obligations in respect of obligations of the Borrowers
denominated in Dollars, in which case such payments shall be made in Dollars) to
the Agent, by deposit of such funds to the Agent's Account in same day funds.
The Agent will promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest or commitment fees ratably (other than
amounts payable pursuant to Section 2.04(b)(ii), 2.11, 2.14 or 9.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurocurrency
23
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Agent on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on
the Business Day next succeeding, and such extension of time shall in such
case be included in the computation of payment of interest, fee or
commission, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurocurrency Rate
Advances to be made in the next following calendar month, such payment
shall be made on the Business Day next preceding.
(d) Unless the Agent shall have received notice from the applicable
Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the Agent
may assume that such Borrower has made such payment in full to the Agent on
such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent any Borrower shall not have so
made such payment in full to the Agent, each Lender shall repay to the
Agent forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to
the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Euros.
(e) If the Agent receives funds for application to the obligations
hereunder under circumstances for which neither this Agreement nor any
Borrower specifies the Advances to which, or the manner in which, such
funds are to be applied, the Agent may, but shall not be obligated to,
elect to distribute such funds to each Lender ratably in accordance with
such Lender's proportionate share of the sum of the principal amount of all
outstanding Advances and the Available Amount of all Letters of Credit then
outstanding, in repayment or prepayment of such of the outstanding Advances
or other obligations owed to such Lender, and for application to such
principal installments, as the Agent shall direct, in each case first
toward such Advances or other obligations as are denominated in the same
currency as such received funds.
(f) To the extent that the Agent receives funds for application to the
amounts owing by the Borrowers under or in respect of this Agreement or any
Note in currencies other than the currency or currencies required to enable
the Agent to distribute funds to the Lenders in accordance with the terms
of this Section 2.13, the Agent shall be entitled to convert or exchange
such funds into Euros or Dollars or from Euros to Dollars or from Dollars
to Euros, as the case may be, to the extent necessary to enable the Agent
to distribute such funds in accordance with the terms of this Section 2.13;
provided that each Borrower and each of the Lenders hereby agree that the
Agent shall not be liable or responsible for any loss, cost or expense
suffered by such Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.13(f) or as a
result of the failure of the Agent to effect any such conversion or
exchange; and provided further that such Borrower agrees to indemnify the
Agent and each Lender, and hold the Agent and each Lender harmless, for any
and all losses, costs and expenses incurred by the Agent or any Lender for
any conversion or exchange of currencies (or the failure to convert or
exchange any currencies) in accordance with this Section 2.13(f).
(g) Notwithstanding any of the foregoing or any other provision of
this Credit Agreement or the Notes to the contrary, payments of interest
made by Noveon France or any French Designated Subsidiary in respect of any
Advances owing to any Lender acting through a lending office in France
shall be paid directly by such Borrower to such Lender (or if requested by
the Agent prior to the date such interest is due and owing, to a paying
agent in France appointed by the Agent for such purpose for onward transfer
in France by such paying agent to such Lender) exclusively through French
bank accounts, in an amount to each such Lender (or paying agent, as
applicable) as calculated by the Agent upon the request of such Borrower.
Each Lender acting through a lending office in France agrees to notify the
Borrowers in writing that it is acting through a lending office in France
as soon as possible but no later than two (2) Business Days prior to the
date an interest payment is due and owing to such Lender.
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SECTION 2.14. Taxes. (a) Any and all payments by the Borrowers to or
for the account of any Lender or the Agent hereunder or under the Notes and any
and all payments by the Guarantor to or for the account of any Lender or the
Agent hereunder shall be made, in accordance with Section 2.13 or the applicable
provisions of such other documents, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, (i) foreign, United States federal, state and
local taxes imposed on its overall net income and franchise taxes imposed on it
in lieu of net income taxes by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof, or by any jurisdiction where such Lender or the Agent (as
the case may be) is doing business or any political subdivision thereof and, in
the case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof, or by
any jurisdiction where such Lender's Applicable Lending Office is doing business
or any political subdivision thereof and (ii) United States state and local
withholding taxes (in the appropriate amount) on the gross amount of interest
paid by the Loan Parties for which such Lender or the Agent (as the case may be)
is entitled to a credit for such withholding taxes against a tax described in
(i) (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If any Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note or any other documents to be delivered hereunder to any Lender or the
Agent or if the Guarantor shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any other documents to be
delivered hereunder to any Lender or the Agent, (x) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.14) such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (y) such Loan
Party shall make such deductions and (z) such Loan Party shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law. For the avoidance of doubt, if any Loan Party
shall be required by a court of competent jurisdiction to pay over an amount
other than as Taxes, there shall be no adjustment as to such payment under this
Section 2.14(a).
(b) In addition, each relevant Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
under the Notes any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes or any other documents to be
delivered hereunder (hereinafter referred to as "Other Taxes").
(c) Each Borrower (solely in respect of Taxes, Other Taxes and any
liability arising therefrom or with respect thereto that are related to
Advances made to such Borrower or Letters of Credit issued at the request
of such Borrower; and otherwise, ratably with each other Borrower), and the
Guarantor shall indemnify each Lender and the Agent for and hold it
harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.14) imposed on or paid
by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
relevant Loan Party shall furnish to the Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing
such payment to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the
Agent.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter as reasonably
requested in writing by the Borrowers (but only so long as such Lender
remains lawfully able to do so), shall provide each of the Agent and the
Borrowers with two original Internal Revenue Service forms W-8BEN or
W-8ECI, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, properly certifying that such Lender is exempt
from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the form provided by a
Lender at the time
25
such Lender first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at
such rate shall be considered excluded from Taxes (and tax withheld in
excess of such rate shall be included in Taxes) unless and until such
Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to
which a Lender assignee becomes a party to this Agreement, the Lender
assignor was entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such date, then, to
such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to
the Lender assignee on such date. If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that
the Lender reasonably considers to be confidential, the Lender shall give
notice thereof to the Borrowers and shall not be obligated to include in
such form or document such confidential information. For purposes of this
subsection (e), the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code
(f) For any period with respect to which a Lender has failed to
provide the Borrowers with the appropriate form, certificate or other
document described in Section 2.14(e) (other than if such failure is due to
a change in law, or in the interpretation or application thereof, occurring
subsequent to the date on which a form, certificate or other document
originally was required to be provided, or if such form otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed
by the United States by reason of such failure and the Loan Parties may
withhold at the full United States statutory withholding tax rate on
interest (currently, 30%); provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form, certificate or
other document required hereunder, the Loan Parties shall take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such 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. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off as provided in Section 9.05) with respect to
such participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note in substantially the form of Exhibit A hereto, payable to the
order of such Lender in a principal amount equal to the Revolving Credit
Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender,
in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing, the currency of such Borrowing and, if appropriate, the
Interest Period applicable thereto, (ii) the terms of each Assignment and
26
Acceptance delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iv) the amount of any sum
received by the Agent from each Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and
payable from each Borrower to, in the case of the Register, each Lender
and, in the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the failure of
the Agent or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrowers under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and each of the Borrowers agrees that it or its Subsidiaries, as
applicable, shall use such proceeds) solely for general corporate purposes of
the Borrowers and their respective Subsidiaries.
SECTION 2.18. Professional Market Party Representation. (a) Each
Lender that makes an Advance to a Dutch Borrower represents to each Dutch
Borrower, on the date of this Agreement and, if on such date it is a requirement
of Dutch law that each Lender is a PMP, on the date on which an Advance (or any
portion thereof) is made to such Dutch Borrower, that (i) it is a PMP and (ii)
it is aware that it does not benefit from the (creditor) protection offered by
the Dutch Banking Act when lending monies to persons or entities that are
subject to the prohibition of Article 82 of the Dutch Banking Act.
(b) If, on the date on which a Person that becomes a party hereto
pursuant to Section 9.07 makes an Advance to a Dutch Borrower, it is a
requirement of Dutch law that such Person be a PMP, such Person makes the
representation set out in paragraph 3(vii) of the Assignment and
Acceptance.
(c) Each Lender acknowledges that each Dutch Borrower has relied upon
such representation and warranty and undertakes, to the extent necessary,
to provide its reasonable assistance to each Dutch Borrower in verifying
such Lender's status as a PMP.
SECTION 2.19. Credit Transactions in France. Each Lender that makes an
Advance to, or that issues a Letter of Credit at the request of, Noveon France
(or any French Designated Subsidiary that becomes a Borrower hereunder)
represents that it is authorized to carry out such credit transactions in France
pursuant to applicable banking monopoly laws and regulations of France.
SECTION 2.20. Credit Obligations of Borrowers Several. For the
avoidance of doubt, it is acknowledged that the obligations of the Borrowers
(including any Designated Subsidiary that becomes a Borrower hereunder) are
several and no Borrower is acting jointly and severally with any other Loan
Party or shall be the joint and several obligor for the obligations of any other
Loan Party under the Loan Documents.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date on or prior to September 20, 2005 (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2004.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Guarantor or any of its Subsidiaries pending or,
to the knowledge of the Guarantor, threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse
27
Effect other than the matters described on Schedule 3.01(b) hereto (the
"Disclosed Litigation") or (ii) purports to affect the legality, validity
or enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material
adverse change in the status, or financial effect on the Guarantor or any
of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that
any written information provided to them by the Loan Parties was or has
become misleading, incorrect or incomplete in any material respect; without
limiting the generality of the foregoing, the Lenders shall have been given
such access to the management, records, books of account, contracts and
properties of the Guarantor and its Subsidiaries as they shall have
reasonably requested.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders, in each case that
restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(e) The Borrowers shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) Europe Holdings shall have paid (or procured the payment of) all
accrued fees and expenses of the Agent and the Lenders (including the
accrued reasonable fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of each of the Loan Parties, dated the
Effective Date, stating that:
(i) The representations and warranties of such Loan Party
contained in Article IV are correct on and as of the Effective Date,
and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the Lenders to the extent requested by any
Lender pursuant to Section 2.16.
(ii) Certified copies of (A) the constitutive documents of each
Loan Party and the General Partners, (including, (1) in the case of
Noveon Europe, the corporate file of Noveon Europe, such corporate
file to include at least the publications in the Belgian Official
Gazette, articles of association and certificate of non-bankruptcy of
Noveon Europe, and (2) in the case of Noveon France the Statuts and
the Extrait K-bis of Noveon France), (B) the resolutions of the board
of directors (or persons performing similar functions) or shareholders
(as appropriate) of (1) each Loan Party approving each Loan Document
to which it is a party and, with respect to Noveon Europe, confirming
that the entry into the Loan Documents and the transactions
contemplated thereby is in its corporate interest, and (2) each
General Partner, approving the entry into the Loan Documents by Europe
Holdings, and (C) all documents evidencing other necessary corporate
action and governmental approvals of each Loan Party, if any, with
respect to each Loan
28
Document to which it is a party, and of each General Partner, if any,
with respect to each Loan Document to which Europe Holdings is a
party.
(iii) A certificate of the Secretary or an Assistant Secretary
(or persons performing similar functions) of each Loan Party and/or
General Partner certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is a party (or in the case of the General Partner, the
officers of such General Partner authorized to sign each Loan Document
to which Europe Holdings is a party) and the other documents to be
delivered hereunder (to the extent such information is not available
in the Extrait K-bis or similar public record of such Loan Party or
General Partner).
(iv) A favorable opinion of the Vice President and General
Counsel of the Guarantor, substantially in the form of Exhibit D-1
hereto.
(v) (A) A favorable opinion of Xxxxx, Day, special Belgian
counsel to the Borrowers, substantially in the form of Exhibit D-2,
(B) a favorable opinion of Xxxxx, Day, special French counsel to the
Borrowers, substantially in the form of Exhibit D-3, (C) a favorable
opinion of AKD Xxxxxxx Van Wijmen, N.V., Netherlands counsel to the
Borrowers, substantially in the form of Exhibit D-4 hereto and (D) a
favorable opinion of Xxxxxxxx Xxxx LLP, Delaware counsel to the
General Partners, substantially in the form of Exhibit D-5 hereto.
(vi) Noveon France shall have acknowledged receipt of the TEG
Letter pursuant to Section 2.07(c).
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each
Designated Subsidiary. The obligation of each Lender to make an initial Advance
to each Designated Subsidiary following its designation as a Borrower hereunder
pursuant to Section 9.12 on the occasion of the initial Borrowing thereby is
subject to the Agent's receipt on or before the date of such initial Borrowing
of each of the following, in form and substance satisfactory to the Agent and
dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit E hereto.
(b) The Note of such Designated Subsidiary to the Lenders to the
extent requested by any Lender pursuant to Section 2.16.
(c) A certificate of the Secretary or an Assistant Secretary (or
person performing similar functions) of such Designated Subsidiary
certifying (i) appropriate resolutions of the board of directors (or
persons performing similar functions) of such Designated Subsidiary
approving this Agreement and its Notes, and all documents evidencing other
necessary corporate (or equivalent) action and governmental approvals, if
any, with respect to this Agreement and its Notes (copies of which shall be
attached thereto) and (ii) the names and true signatures of the officers of
such Designated Subsidiary authorized to sign the Designation Letter of
such Designated Subsidiary and its Notes and the other documents to be
delivered by such Designated Subsidiary hereunder.
(d) A copy of a certificate of the Secretary of State (or other
appropriate governmental authority) of the jurisdiction of organization of
such Designated Subsidiary (to the extent such certificates are generally
obtainable in such jurisdiction), dated reasonably near the date of such
Borrowing, certifying that such Designated Subsidiary is duly organized and
in good standing (or the equivalent thereof) under the laws of the
jurisdiction of its organization.
(e) A certificate signed by a duly authorized officer of such
Designated Subsidiary, dated as of the date of such Borrowing, certifying
that such Designated Subsidiary has obtained all authorizations, consents,
approvals (including, without limitation, exchange control approvals) and
licenses of any
29
governmental authority or other third party necessary for such Designated
Subsidiary to execute and deliver its Designation Letter and its Notes and
to perform its obligations under this Agreement or any of its Notes.
(f) Such other documents, opinions and other information as any
Lender, through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing and Issuance. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
and the obligations of each Issuing Bank to issue a Letter of Credit shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing or such issuance (a) the following statements
shall be true (and each of the giving of the applicable Notice of Borrowing,
Notice of Issuance and the acceptance by such Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Borrowing or such issuance such statements are true):
(i) the representations and warranties contained in Aricle IV
(except, in the case of Borrowings made after the initial Borrowing
and in the case of the issuance of Letters of Credit, the
representations set forth in the last sentence of Section 4.01(e)
thereof) (and, if such Borrowing shall have been requested by a
Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Letter) are correct
on and as of such date, before and after giving effect to such
Borrowing or such issuance and to the application of the proceeds
therefrom, as though made on and as of such date except to the extent
that such representations and warranties expressly relate to an
earlier specified date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or such issuance or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender 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 the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the
Borrowers, by notice to the Lenders, designate as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Guarantor. The
Guarantor represents and warrants as follows:
(a) The Guarantor is a Person duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation.
(b) The execution, delivery and performance by the Guarantor of each
Loan Document to which it is a party and to be delivered by it, and the
consummation of the transactions contemplated hereby, are within the
Guarantor's corporate or other powers, have been duly authorized by all
necessary corporate or other action, and do not contravene (i) the
Guarantor's charter or code of regulations or comparable organizational
documents or (ii) any applicable law or any contractual restriction in any
material contract or, to the knowledge of the chief financial officer of
the Guarantor, any other contract the breach of which
30
would limit the ability of the Guarantor to perform its obligations under
any Loan Document, binding on or affecting the Guarantor.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Guarantor of any Loan Document to which it is a party and to be
delivered by it or for the consummation of the transactions contemplated
hereby, other than authorizations, approvals, actions, notices or filings
(i) that have been duly obtained, taken, given or made and are in full
force and effect or (ii) as to which the failure to obtain, take, give or
make would not reasonably be likely to result in a Material Adverse Effect.
(d) This Agreement has been duly executed and delivered by the
Guarantor. This Agreement is the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or law).
(e) The Consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 2004, and the related Consolidated
statements of income and cash flows of the Guarantor and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, and the Consolidated balance
sheet of the Guarantor and its Subsidiaries as at June 30, 2005, and the
related Consolidated statements of income and cash flows of the Guarantor
and its Subsidiaries for the six months then ended, duly certified by the
chief financial officer of the Guarantor, copies of which have been
furnished to each Lender, fairly present, subject, in the case of said
balance sheet as at June 30, 2005, and said statements of income and cash
flows for the six months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Guarantor and its Subsidiaries as
at such dates and the Consolidated results of the operations of the
Guarantor and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP consistently applied. Since December 31, 2004, there
has been no Material Adverse Change.
(f) There is no pending or, to the Guarantor's knowledge, threatened
action, suit, investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Guarantor or any of its
Subsidiaries before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect (other than
the Disclosed Litigation) or (ii) purports to affect the legality, validity
or enforceability of this Agreement or any other Loan Document or the
consummation of the transactions contemplated hereby, and there has been no
adverse change in the status, or financial effect on the Guarantor or any
of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(g) Any information, exhibit or report that has been or will hereafter
be furnished by or on behalf of the Guarantor to the Agent or any Lender in
connection with the negotiation and syndication of this Agreement or
pursuant to the terms of this Agreement is and will be when furnished,
taken as a whole, complete and correct in all material respects and does
not and will not, when furnished, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements contained therein not misleading in light of the
circumstances under which such statements were or are made.
(h) The Guarantor is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
31
(i) The Guarantor is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(j) The Guarantor is, individually and together with its Subsidiaries,
Solvent. "Solvent" means, with respect to any Person on a particular date,
that on such date (i) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts
as they become absolute and matured, (iii) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay such debts and liabilities as they mature and (iv)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light
of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
SECTION 4.02. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) It is a Person duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation (to the extent
such concept is recognized under such laws generally).
(b) The execution, delivery and performance by it of each Loan
Document to which it is a party and to be delivered by it, and the
consummation of the transactions contemplated hereby, are within such
Borrower's corporate or other powers, have been duly authorized by all
necessary corporate or other action, and do not contravene (i) such
Borrower's charter or bylaws or comparable organizational documents or (ii)
any applicable law or any contractual restriction in any material contract
or, to the knowledge of the chief financial officer of such Borrower, any
other contract the breach of which would limit the ability of such Borrower
to perform its obligations under any Loan Document, binding on or affecting
such Borrower. With respect to Noveon Europe, the entry into the Loan
Documents and the transactions contemplated thereby is in its corporate
interest.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
such Borrower of any Loan Document to which it is a party and to be
delivered by it or for the consummation of the transactions contemplated
hereby, other than authorizations, approvals, actions, notices or filings
(i) that have been duly obtained, taken, given or made and are in full
force and effect or (ii) as to which the failure to obtain, take, give or
make would not reasonably be likely to result in a Material Adverse Effect.
(d) This Agreement has been, and each of the other Loan Documents to
be delivered by it when delivered hereunder will have been, duly executed
and delivered by it. This Agreement is, and the other Loan Documents when
delivered hereunder will be, its legal, valid and binding obligation
enforceable against it in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or law).
(e) There is no pending or, to such Borrower's knowledge, threatened
action, suit, investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting such Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect (other than
the Disclosed Litigation) or (ii) purports to affect the legality, validity
or enforceability of this Agreement or any other Loan Document or the
consummation of the transactions contemplated hereby, and there has been no
adverse change in the status,
32
or financial effect on such Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(f) Any information, exhibit or report that has been or will hereafter
be furnished by or on behalf of such Borrower to the Agent or any Lender in
connection with the negotiation and syndication of this Agreement or
pursuant to the terms of this Agreement is and will be when furnished,
taken as a whole, complete and correct in all material respects and does
not and will not, when furnished, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements contained therein not misleading in light of the
circumstances under which such statements were or are made.
(g) Such Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) Such Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall remain outstanding or any Lender shall
have any Commitment hereunder, each Borrower and the Guarantor (in its capacity
as Guarantor) will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither
such Loan Party nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being contested
in good faith and by proper proceedings.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Loan Party or
such Subsidiary operates; provided, however, that such Loan Party and its
Subsidiaries may self-insure to the same extent as other companies engaged
in similar businesses and owning similar properties and to the extent
consistent with prudent business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that such Loan Party and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(b) and provided
further that neither such Loan Party nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors (or
equivalent governing body) of such Loan Party or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of such Loan Party or such Subsidiary, as the case
may be,
33
and that the loss thereof is not disadvantageous in any material respect to
such Loan Party, such Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
upon reasonable notice and during normal business hours, permit the Agent
or any of the Lenders or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account of,
and visit the properties of, such Loan Party and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of such Loan Party and
any of its Subsidiaries with any of their officers or directors and with
their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
such Loan Party and each such Subsidiary in accordance with GAAP in effect
from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Guarantor, the Consolidated balance sheet of the Guarantor and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Guarantor and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Guarantor as
having been prepared in accordance with GAAP and certificates of the
chief financial officer of the Guarantor as to compliance with the
terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Guarantor, a copy of the annual
report for such year for the Guarantor and its Subsidiaries,
containing the Consolidated balance sheet of the Guarantor and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Guarantor and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Required Lenders by Deloitte & Touche LLP or
other independent public accountants reasonably acceptable to the
Required Lenders. There shall also be provided, in reasonable detail,
the calculations necessary to demonstrate compliance with Section
5.03;
(iii) as soon as possible and in any event within five days after
a responsible officer of the Guarantor knows or should have known of
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Guarantor
setting forth details of such Default and the action that the
Guarantor has taken and/or proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that the Guarantor sends to any of its security holders, and
copies of all reports and registration statements that the Guarantor
or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Guarantor or any of its Subsidiaries of the
type described in Section 4.01(f); and
34
(vi) such other information respecting the Guarantor or any of
its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(i) Pari Passu Status. Ensure, and cause each of its Designated
Subsidiaries to ensure, that the Debt outstanding under this Agreement and
the Notes (including without limitation, in the case of the Guarantor, the
payment obligations of the Guarantor under its Guaranty) ranks at least
pari passu with all other senior unsecured Debt of such Loan Party or such
Designated Subsidiary, as the case may be.
(j) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Guarantor or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall remain outstanding or any Lender shall have
any Commitment hereunder, neither any Borrower nor the Guarantor (in its
capacity as Guarantor), will:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Guarantor or any Subsidiary in the
ordinary course of business (including any Lien in respect of a
capitalized lease of personal property) to secure the purchase price
of such property or equipment or to secure Debt incurred solely for
the purpose of financing the acquisition or lease of such property or
equipment, or Liens existing on such property or equipment at the time
of its acquisition (other than any such Liens created in contemplation
of such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however, that
no such Lien shall extend to or cover any properties of any character
other than the real property or equipment being acquired or leased,
and no such extension, renewal or replacement shall extend to or cover
any properties not theretofore subject to the Lien being extended,
renewed or replaced,
(iii) Liens asserted by warehousemen, mechanics or materialmen
which Liens are being contested in good faith by appropriate
proceedings diligently conducted and for which reserves in accordance
with GAAP are being maintained on the books of the Guarantor and any
mechanic's, carrier's, landlord's or similar common law or statutory
lien incurred in the normal course of business which has not been
docketed as a judgment,
(iv) Liens or levies for taxes, fees, assessments or governmental
charges not yet due and payable or being contested in good faith by
appropriate proceedings diligently conducted and Liens resulting from
or incurred with respect to legal proceedings which are being
contested in good faith by appropriate proceedings diligently
conducted; provided that reserves in accordance with GAAP are being
maintained on the books of the Guarantor with respect to such taxes,
fees, assessments, governmental charges and legal proceedings,
(v) Liens securing only workers' compensation, unemployment
insurance or similar obligations and/or deposits or pledges made in
connection with, or to secure payment of, utilities or similar
services, leases, workers' compensation, unemployment insurance, old
age pensions or other social security obligations,
35
(vi) Encumbrances as set forth in all deeds, title insurance and
mortgages existing as of the Effective Date in respect of all real
property owned or leased by the Guarantor or any of its Subsidiaries
and any other zoning or deed restrictions, public utility easements,
minor title irregularities and similar matters having no material
adverse effect as a practical matter on the ownership or use of any of
the real property in question,
(vii) Liens securing or given in lieu of surety, stay, appeal or
performance bonds (other than contracts for the payment of
indebtedness for borrowed money), or deposits required by law or
governmental regulations or by any court order, decree, judgment or
rule or as a condition to the transaction of business or the exercise
of any right, privilege or license, or Liens arising from a judgment
not constituting an Event of Default,
(viii) Interest or title of a lessor under a lease,
(ix) Liens in favor of the Agent or a Lender, if any, to secure
the obligations of the Loan Parties under the Loan Documents,
(x) Liens created or assumed in purchasing, constructing or
improving any real property or to which any real property is subject
when purchased; provided, however, that: (x) the mortgage, security
interest or other lien is confined to the property in question, and
(y) the indebtedness secured thereby is non-recourse as to any Loan
Party and does not exceed the total cost of the purchase, construction
or improvement,
(xi) Any transfer of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal course
of business,
(xii) Any financing statement perfecting a security interest that
would be permissible under this Section 5.02(a),
(xiii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Guarantor or any
Subsidiary of the Guarantor or becomes a Subsidiary of the Guarantor;
provided that such Liens were not created in contemplation of such
merger, consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated with the
Guarantor or such Subsidiary or acquired by the Guarantor or such
Subsidiary,
(xiv) other Liens securing Debt in an aggregate principal amount
not to exceed at any time outstanding 2% of Consolidated Tangible Net
Assets at the time such Lien is incurred,
(xv) the replacement, extension or renewal of any Lien permitted
by clause (i), (ii), (viii), (ix) or (xii) above upon or in the same
property theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby, and
(xvi) Liens on receivables (and related assets) in connection
with Permitted Receivables Financings, so long as such Liens extend
solely to the receivables (and related assets) being securitized
thereunder.
(b) Mergers, Acquisitions, Etc. Merge with or into or consolidate with
any other Person; liquidate, wind up, dissolve or divide; acquire all or
substantially all of the properties or assets of any ongoing concern or
ongoing line of business; acquire all or substantially all of the capital
stock or other equity interests in or of any other Person other than in the
ordinary course of business; or agree, become or remain liable
(contingently or otherwise) to do any of the foregoing, or permit any of
its Subsidiaries to do any of the foregoing, except:
36
(i) the Guarantor or any Subsidiary of the Guarantor may acquire
all or substantially all of the properties or assets of any other
Person, acquire all or substantially all of the capital stock or other
equity interests in or of any other Person, or become or remain liable
(contingently or otherwise) to do any of the foregoing,
(ii) a directly or indirectly wholly owned Subsidiary of the
Guarantor (or any Subsidiary of such Subsidiary) may merge with or
into or consolidate with or into any other wholly owned Subsidiary of
the Guarantor (or any Subsidiary of such Subsidiary),
(iii) Europe Holdings may, upon compliance with Section 9.12(b),
be dissolved or liquidated, and
(iv) a directly or indirectly wholly owned Subsidiary of the
Guarantor (or any Subsidiary of such Subsidiary) may merge with the
Guarantor, provided that the Guarantor shall be the surviving
corporation,
provided further, in the case of each transaction permitted in clauses (i),
(ii) and (iii), that no Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets, except (i) sales of inventory in the
ordinary course of its business, (ii) sales, transfers or other
dispositions of obsolete or worn-out tools, equipment or other property
(including leasehold interests) no longer used or useful in business and
sales of intellectual property determined to be uneconomical, negligible or
obsolete, (iii) sales, leases, transfers and other dispositions of assets
(other than Foreign Assets) by (x) any Subsidiary of the Guarantor to the
Guarantor or (y) any Subsidiary of the Guarantor to any other Subsidiary of
the Guarantor, (iv) sales, leases, transfers and other dispositions of
Foreign Assets by the Guarantor or any of its Subsidiaries to the Guarantor
or any of its Subsidiaries, (v) in addition to the sales permitted in
clauses (i), (ii), (iii) and (iv) above, sales of assets for fair value,
provided that in the case of the sale of any asset pursuant to this clause
(v) in a single transaction or a series of related transactions in an
aggregate amount exceeding $20,000,000, the fair value of such asset shall
have been determined in good faith by the Board of Directors of the
Guarantor, and (vi) sales or transfers of receivables (and related assets)
in connection with Permitted Receivables Financings.
(d) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Guarantor in (A) its Subsidiaries
outstanding on the date hereof, (B) Subsidiaries of the Guarantor as
required or as reasonably desirable to comply with thin capitalization
rules in jurisdictions outside the United States, (C) wholly owned
Subsidiaries (other than pursuant to clauses (B) or (D)) in an
additional aggregate amount invested from the date hereof not to
exceed $50,000,000 and (D) Material Domestic Subsidiaries;
(ii) Investment by Subsidiaries of the Guarantor in any other
Subsidiaries of the Guarantor;
(iii) loans and advances to employees in the ordinary course of
the business of the Guarantor and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $5,000,000 at
any time outstanding;
(iv) Investments in Marketable Securities;
(v) Investments made by a Loan Party or its Subsidiaries in joint
ventures as required by the applicable joint venture agreement in
effect as of the date hereof and additional
37
Investments in joint ventures in an aggregate amount not to exceed
$20,000,000 at any time outstanding;
(vi) Investments consisting of intercompany Debt owed to a Loan
Party or to a direct or indirect wholly owned Subsidiary of a Loan
Party;
(vii) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the ordinary
course of business;
(viii) the Guarantor and its Subsidiaries may acquire and hold
receivables and similar items owing to them in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms;
(ix) the Guarantor and its Subsidiaries may acquire and own
Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of customers and suppliers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(x) Investments by Foreign Subsidiaries of the Guarantor in the
following (or the equivalent thereof in the applicable foreign
jurisdiction): (A) time deposits maturing within one year from the
date of purchase thereof, including certificates of deposit issued by
any bank or trust company organized outside of the United States that
has total assets aggregating at least $200,000,000 or the equivalent
in a foreign currency, (B) fully collateralized repurchase agreements
having a term of not more than 30 days and covering securities
described in subsection (A) above entered into with any bank or trust
company described in subsection (A) above, or (C) investments in money
market funds substantially all of the assets of which are comprised of
securities described in (A) and (B) above;
(xi) loans and advances to customers and vendors in the ordinary
course of business of the Guarantor and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $15,000,000
at any time outstanding;
(xii) Investments made by the Guarantor or its Subsidiaries in
Subsidiaries of the Guarantor made as capital contributions of Foreign
Assets;
(xiii) Investments consisting of guarantees (including the
Guaranty) by the Guarantor of Debt of its Subsidiaries in an aggregate
principal amount not to exceed EUR 250,000,000; and
(xiv) other Investments in an aggregate amount invested not to
exceed $100,000,000.
(e) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its or their Subsidiaries to declare or pay
dividends or other distributions in respect of its equity interests or
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Guarantor or any Subsidiary of the
Guarantor (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except (i)
any agreement or instrument evidencing Debt existing on the date hereof and
(ii) any agreement in effect at the time such Subsidiary becomes a
Subsidiary of the Guarantor, so long as such agreement was not entered into
solely in contemplation of such Person becoming a Subsidiary of the
Guarantor.
(f) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by GAAP.
38
(g) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business of
the Guarantor and its Subsidiaries considered as a whole as carried on at
the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall remain outstanding or any Lender shall have
any Commitment hereunder, the Guarantor will:
(a) Debt/EBITDA Ratio. Maintain a ratio of Consolidated Debt to
Consolidated EBITDA for the period of twelve months most recently ended on
or prior to the last day of each fiscal quarter set forth below of not
greater than the ratio set forth opposite such fiscal quarter end below:
Fiscal Quarter Ending Ratio
--------------------- ---------
September 30, 2005 4.00 to 1
December 31, 2005 3.75 to 1
Each fiscal quarter end after December 31, 2005 3.50 to 1
(b) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA
for the period of four quarters most recently ended to cash interest
payable on, and amortization of debt discount in respect of, all Debt
during such period, by the Guarantor and its Subsidiaries of not less than
3.50 : 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance made
to it when the same becomes due and payable; or any Borrower shall fail to
pay any interest on any Advance made to it or make any other payment of
fees or other amounts payable under this Agreement or any Note within four
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party herein or by
any Loan Party (or any of its corporate officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when
made; or
(c) (i) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e) or (h), 5.02 or
5.03, or (ii) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 15 days
after written notice thereof shall have been given to the Borrowers by the
Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $25,000,000 (or the equivalent thereof in any
other currency) in the aggregate at any one time (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to
39
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) Any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or is in a state of cessation des paiements or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Loan Party or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up (including a sluiting van een onderneming /
fermeture d'enterprise), administration, dissolution, , reorganization,
arrangement, adjustment, protection, relief, composition (including a
gerechtelijk akkoord / concordat judiciaire, reglement amiable,
redressement judiciaire, cession totale de l'entreprise or liquidation
judiciaire) or any other proceeding with a similar effect of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
(including a curator / curateur, liquidator, liquidateur, voorlopig
bewindvoerder / administrateur judiciaire, gerechtelijk deskundige / expert
judiciaire, commissaris inzake opschorting / commissaire au sursis,
sekwester / sequester, mandataire ad hoc, conciliateur, administrateur or
mandataire judiciaire) for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian, or other
similar official (including a curator / curateur, liquidator, liquidateur,
voorlopig bewindvoerder / administrateur judiciaire, gerechtelijk
deskundige / expert judiciaire, commissaris inzake opschorting /
commissaire au sursis, sekwester / sequester, mandataire ad hoc,
conciliateur, administrateur or mandataire judiciaire) for, it or for any
substantial part of its property) shall occur; or any Loan Party or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 (or the equivalent thereof in any other currency) in the
aggregate shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
not be an Event of Default under this Section 6.01(f) if and for so long as
(i) the amount of such judgment or order is covered by a valid and binding
policy of insurance between the defendant and the insurer covering payment
thereof and (ii) such insurer, which shall be rated at least "A" by A.M.
Best Company, has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Guarantor (or other
securities convertible into such Voting Stock) representing 20% or more of
the combined voting power of all Voting Stock of the Guarantor; or (ii)
during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Guarantor shall cease for any reason
to constitute a majority of the board of directors of the Guarantor; or
(iii) the Guarantor shall cease to own, directly or indirectly, all Voting
Stock of each of the Borrowers, unless such Borrower has been terminated as
a Borrower in accordance with Section 9.12(b); or
40
(h) The Guarantor or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Lenders, shall be reasonably likely
to incur liability in excess of $25,000,000 in the aggregate as a result of
one or more of the following: (i) the occurrence of any ERISA Event; (ii)
the partial or complete withdrawal of the Guarantor or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) The Guaranty shall for any reason cease to be valid and binding on
or enforceable against the Guarantor, or the Guarantor shall so state in
writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrowers, terminate the
Commitments (other than the Commitments to make Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)), and thereupon the Commitments shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Required Lenders, by notice to the Borrowers, declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated (other than the Commitments to make Advances
by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and (B) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Lenders having at
least a majority in interest of the Revolving Credit Commitments, irrespective
of whether it is taking any of the actions described in Section 6.01 or
otherwise, make demand upon the Borrowers to, and forthwith upon such demand
each Borrower will, (a) pay to the Agent on behalf of the Lenders in same day
funds at the Agent's office designated in such demand, for deposit in the L/C
Cash Collateral Account, an amount equal to the aggregate Available Amount of
all Letters of Credit issued at its request then outstanding or (b) make such
other arrangements in respect of such outstanding Letters of Credit as shall be
acceptable to the Lenders having at least a majority in interest of the
Revolving Credit Commitments. If at any time the Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Agent and the Lenders or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
relevant Borrowers will, forthwith upon demand by the Agent, pay to the Agent,
as additional funds to be deposited and held in the L/C Cash Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b)
the total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Agent determines to be free and clear of any such right and claim. Upon
the drawing of any Letter of Credit, to the extent funds are on deposit in the
L/C Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Banks to the extent permitted by applicable law. After (i) no Event of
Default shall be continuing or (ii) all such Letters of Credit shall have
expired or been fully drawn upon and all other obligations of the Borrowers
hereunder and under the Notes shall have been paid in full, the balance, if any,
in such L/C Cash Collateral Account shall be returned to the Borrowers.
SECTION 6.03. Remedies Against the General Partners. Without prejudice
to any of its rights and remedies under the Loan Documents and applicable law as
against any Loan Party, each Lender and the Agent agrees that it will not pursue
remedies in respect of the enforcement of its rights under the Loan Documents
against the individual assets of either of the General Partners unless it shall
first have, in its reasonable determination, exhausted its remedies against the
community assets of Europe Holdings and its remedies against the Guarantor.
41
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all obligations of each Borrower now or
hereafter existing under or in respect of this Agreement and the Notes of such
Borrower (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Agent or
any Lender in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any Borrower to the Agent or any Lender under or in respect of this Agreement
and its Notes but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
such Borrower. Notwithstanding any other provisions of this Agreement, stock of
a foreign entity directly held by the Guarantor shall not serve as security for
the Guaranteed Obligations, other than stock of any such foreign entity
representing no more than 65% of the total combined voting power of all classes
of stock of such entity entitled to vote.
SECTION 7.02. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Agent or any Lender with respect thereto. The obligations
of the Guarantor under or in respect of this Guaranty are independent of the
Guaranteed Obligations or any other obligations of any Borrower under or in
respect of this Agreement and the Notes, and a separate action or actions may be
brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against any Borrower or whether
any Borrower is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and to the extent not prohibited by applicable law, the
Guarantor hereby irrevocably waives any defenses it may now have or hereafter
acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement, any Note
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Borrower under or in respect of this Agreement, and
Notes, or any other amendment or waiver of or any consent to departure from
this Agreement or any Note, including, without limitation, any increase in
the Guaranteed Obligations resulting from the extension of additional
credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, if any, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of sale
or other disposition of any collateral for all or any of the Guaranteed
Obligations or any other obligations of any Borrower under this Agreement
or the Notes or any other assets of any Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to any Borrower
any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects
42
of any Borrower now or hereafter known to the Agent or such Lender (the
Guarantor waiving any duty on the part of the Agent and the Lenders to
disclose such information);
(g) the release or reduction of liability of any other guarantor or
surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Agent or any Lender that might otherwise constitute a defense available
to, or a discharge of, any Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise,
all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Borrower or
any other Person or any collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Guarantor or other rights of the Guarantor to proceed against any of the
Borrowers, any other guarantor or any other Person or any collateral and
(ii) any defense based on any right of set-off or counterclaim against or
in respect of the obligations of the Guarantor hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Guarantor
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) The Guarantor acknowledges that it will receive substantial direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and that the waivers set forth in Section 7.02 and this Section
7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees, so long as any Event of Default has occurred and is
continuing, not to exercise any rights that it may now have or hereafter acquire
against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under or in respect of this Guaranty, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against any Borrower or any other insider guarantor or any collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
any Borrower or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been terminated.
If any amount shall be paid to the Guarantor in violation of the immediately
preceding sentence at any time prior to
43
the later of (a) the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Guaranty and (b) the Termination Date, such
amount shall be received and held in trust for the benefit of the Agent and the
Lenders, shall be segregated from other property and funds of the Guarantor and
shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) the Guarantor
shall make payment to the Agent or any Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash and
(iii) the Termination Date shall have occurred, the Agent and the Lenders will,
at the Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
SECTION 7.05. Subordination. The Guarantor hereby subordinates any and
all debts, liabilities and other obligations owed to the Guarantor by each
Borrower (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 7.05:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default (including the commencement and continuation of any
proceeding under any bankruptcy law relating to any Borrower), the
Guarantor may receive regularly scheduled payments and dividends or other
distributions in respect of equity, in each case as otherwise permitted
under this Agreement, from any Borrower on account of the Subordinated
Obligations. After the occurrence and during the continuance of any Event
of Default (including the commencement and continuation of any proceeding
under any bankruptcy law relating to any Borrower), however, unless the
Required Lenders otherwise agree, the Guarantor shall not demand, accept or
take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any bankruptcy law relating to any Borrower, the Guarantor agrees that the
Agent and the Lenders shall be entitled to receive payment in full in cash
of all Guaranteed Obligations (including all interest and expenses accruing
after the commencement of a proceeding under any bankruptcy law, whether or
not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Event of Default (including the commencement and continuation of any
proceeding under any bankruptcy law relating to any Borrower), the
Guarantor shall, if the Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the
Agent and the Lenders and deliver such payments to the Agent on account of
the Guaranteed Obligations (including all Post Petition Interest), together
with any necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of the Guarantor
under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default (including the commencement and
continuation of any proceeding under any bankruptcy law relating to any
Borrower), the Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of the Guarantor,
to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to
require the Guarantor (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and (ii) the Termination Date, (b) be
binding upon the Guarantor,
44
its successors and assigns and (c) inure to the benefit of and be enforceable by
the Agent and the Lenders and their successors, transferees and assigns. Without
limiting the generality of clause (c) of the immediately preceding sentence, the
Agent or any Lender may assign or otherwise transfer all or any portion of its
rights and obligations under this Agreement (including, without limitation, all
or any portion of its Commitments, the Advances owing to it and the Note or
Notes held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to the Agent or
such Lender herein or otherwise, in each case as and to the extent provided in
Section 9.07. The Guarantor shall not have the right to assign its rights under
this Article VII or any interest in this Article VII without the prior written
consent of the Agent and the Lenders.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender (in its capacity
as a Lender and an Issuing Bank, as applicable) hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by any Loan Party pursuant to the terms of
this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel for the
Loan Parties), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this
Agreement on the part of any Loan Party or the existence at any time of any
Default or to inspect the property (including the books and records) of any Loan
Party; (v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier or telegram) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.03. ABN AMRO and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, ABN AMRO shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include ABN AMRO in its
individual capacity. ABN AMRO and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any Subsidiary of any Loan Party and any Person who may do business with
or own securities of any Loan Party or any such Subsidiary, all as if ABN AMRO
were not the Agent and without any duty to account therefor to the Lenders. The
Agent shall have no duty to disclose information obtained or received by it or
any of its affiliates relating to any Loan Party or its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
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SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the Advances then owed to each of them (or if no
Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender shall
be liable for any portion of the Indemnified Costs resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the 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, to the extent that the Agent
is not reimbursed for such expenses by the Borrowers. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party. For purposes of
this Section 8.05(a), the Lenders' respective pro rata shares of any amount
shall be determined, at any time, according to the sum of (i) the aggregate
principal amount of the Advances (based on the Equivalent in Euros at such time)
outstanding at such time and owing to the respective Lenders, (ii) their
respective Ratable Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (iii) their respective Unused Revolving
Credit Commitments at such time.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrowers) from and against such
Lender's Ratable Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against any such Issuing Bank in any way relating
to or arising out of this Agreement or any action taken or omitted by such
Issuing Bank hereunder or in connection herewith; provided, however, that
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse any such Issuing Bank promptly upon demand for its Ratable
Share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrowers under Section 9.04, to the
extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrowers.
(c) The failure of any Lender to reimburse the Agent or the Issuing
Bank promptly upon demand for its ratable share of any amount required to
be paid by the Lenders to the Agent or the Issuing Bank as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse
the Agent or the Issuing Bank for its ratable share of such amount, but no
Lender shall be responsible for the failure of any other Lender to
reimburse the Agent or an Issuing Bank for such other Lender's ratable
share of such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder, the agreement and obligations of each
Lender contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent with the consent of the Borrowers, which consent shall not be
unreasonably withheld and shall not be required if any Event of Default has
occurred and is continuing. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving
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of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof (other than the Agent) has any liability hereunder
other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by each affected Lender, do any of the following: (a) waive
any of the conditions specified in Section 3.01, (b) increase the Commitments of
the Lenders, (c) reduce the principal of, or interest on, the Advances or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (e) change the percentage of the Revolving Credit
Commitments or of the aggregate unpaid principal amount of the Advances, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (f) reduce, subordinate or limit the obligations of the
Guarantor under Section 7.01, (g) amend this Section 9.01 or (h) amend or waive
any provision of this Agreement in any manner that would adversely affect such
Lender's right to receive its ratable share of any payment made or proceeds
distributed to which it is entitled under the Loan Documents; and provided
further that (x) no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note and (y) no amendment, waiver or consent shall, unless in writing and signed
by the Issuing Banks in addition to the Lenders required above to take such
action, adversely affect the rights or obligations of the Issuing Banks in their
capacities as such under this Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telecopier or telegraphic
communication) and mailed, telecopied, telegraphed or delivered, if to the
Guarantor or any Borrower, at the address of the Guarantor at 00000 Xxxxxxxx
Xxxx., Xxxxxxxxx, Xxxx 00000-0000, Attention: Treasurer (with a copy to the
Guarantor's legal division at the same address); if to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Agency
Services; or, as to any Loan Party or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrowers and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of the
Borrowers required under this Agreement or any such Note that is delivered
to the Guarantor shall constitute effective notice to such Borrowers or
Borrower and (ii) any Notice of Borrowing or any notice of Conversion
delivered pursuant to Section 2.09 may be delivered by any Borrower. Each
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Borrower and Designated Subsidiary hereby irrevocably appoints the
Guarantor as its authorized agent to receive and deliver notices in
accordance with this Section 9.02, and hereby irrevocably agrees that (A)
in the case of clause (i) of the immediately preceding sentence, the
failure of the Guarantor to give any notice referred to therein to any such
Borrower or Designated Subsidiary to which such notice applies shall not
impair or affect the validity of such notice with respect thereto and (B)
in the case of clause (ii) of the immediately preceding sentence, the
delivery of any such notice by the Guarantor, on behalf of any Borrower,
shall be binding on such Borrower to the same extent as if such notice had
been executed and delivered directly by such Borrower.
(c) Subject to subsection (e) below, each Loan Party agrees that the
Agent may make any written information, documents, instruments and other
material relating to such Loan Party, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications")
available to the Lenders by posting such notices on Intralinks or a
substantially similar electronic system (the "Platform"). Each Loan Party
acknowledges that (i) the distribution of material through an electronic
medium is not necessarily secure and that there are confidentiality and
other risks associated with such distribution, (ii) the Platform is
provided "as is" and "as available" and (iii) neither the Agent nor any of
its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for
errors or omissions in the Communications or the Platform. No warranty of
any kind, express, implied or statutory, including, without limitation, any
warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Agent or any of its Affiliates in connection
with the Platform.
(d) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of
the Communications to such Lender by email or telecopier. Each Lender
agrees (i) to notify the Agent in writing of such Lender's e-mail address
to which a Notice may be sent by electronic transmission (including by
electronic communication) on or before the date such Lender becomes a party
to this Agreement (and from time to time thereafter to ensure that the
Agent has on record an effective e-mail address for such Lender) and (ii)
that any Notice may be sent to such e-mail address.
(e) (i) Except as provided below, any Loan Party may deliver any
information under the Loan Documents to a Bank by posting it on to an
electronic website if (A) the Agent and such Loan Party agree; (B) such
Loan Party and the Agent designate an electronic website for this purpose;
(C) both such Loan Party and the Agent are aware of the address of and any
relevant password specifications for the website; and (D) the information
posted is in a format agreed between such Loan Party and the Agent. The
Agent must supply each relevant Bank with the address of and any relevant
password specifications for the website.
(ii) Notwithstanding the above, such Loan Party must supply to
the Agent in paper form a copy of any information posted on the
website together with sufficient copies for each Lender (A) if so
requested to do so by the Agent; and (B) if so required by a
governmental requirement, in both cases within ten Business Days of
receipt of the request.
(iii) The Agent must promptly upon becoming aware of its
occurrence, notify the Loan Parties and Lenders if (A) the website
cannot be accessed; (B) the website or any information on the website
is infected by any electronic virus or similar software; (C) the
relevant password specification for the website is changed; or (D) any
information to be supplied under this Agreement is posted on the
website or amended after being posted. In the circumstances in clauses
(A) or (B) above occur, the Loan Parties must supply any information
required under this Agreement in paper form.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree to pay on
demand all reasonable, out-of-pocket costs and expenses of only the Agent in
connection with the preparation, execution, delivery,
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administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. Each Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement against it (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding
or preparation of a defense in connection therewith) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances, except to the extent such
claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. The Guarantor agrees to indemnify and hold harmless each
Indemnified Party from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection
therewith) the actual or alleged presence of Hazardous Materials on any
property of the Guarantor or any of its Subsidiaries or any Environmental
Action relating in any way to the Guarantor or any of its Subsidiaries,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated.
The Loan Parties also agree not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of
their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of
or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance is made by any Borrower to or for the account of a Lender (i)
other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the
last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 9.07 as a
result of a demand by the Borrowers pursuant to Section 9.07(a) or (ii) as
a result of a payment or Conversion pursuant to Section 2.08, 2.10 or 2.12,
the applicable Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
any amounts required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment
or Conversion, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of any
Loan Party hereunder, the agreements and obligations of the Loan Parties
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under
the Notes.
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SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party against any and
all of the obligations of such Loan Party now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify such Loan
Party after any such set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender and its Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Loan Parties and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Loan Parties,
the Agent and each Lender and their respective successors and assigns, except
that no Loan Party shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrowers (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, its undrawn Letter of Credit
Commitment, the Advances owing to it, its participations in Letters of Credit
and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under and in respect of its Revolving Credit Commitment, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of (x) the Revolving Credit
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than EUR 5,000,000 or an
integral multiple of EUR 1,000,000 in excess thereof and (y) the undrawn Letter
of Credit Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the applicable Assignment and
Acceptance) shall in no event be less than EUR 1,000,000, unless, in each case,
the Borrowers and the Agent agree, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the
Borrowers pursuant to this Section 9.07(a) shall be arranged by the Borrowers
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrowers pursuant to this Section 9.07(a) unless and until such Lender
shall have received one or more payments from either the Borrowers or one or
more Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Borrowers,
such recordation fee shall be payable by the Borrowers except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Borrowers to an Eligible Assignee that is an existing Lender, and
(vii) any Lender may, without the approval of the Borrowers and the Agent,
assign all or a portion of its rights to any of its Affiliates. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder
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and (y) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Section 2.11,
2.14 and 9.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of any Loan Party or the performance or observance
by any Loan Party of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrowers.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by
it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by the Borrowers or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Loan Parties or any of their Affiliates) in or to
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it and any Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitments to the Borrowers hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrowers, the 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 and (v) no
participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or
any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or
postpone any date fixed for any payment of principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to
the extent subject to such participation.
51
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.07,
disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Loan Party furnished to such
Lender by or on behalf of any Loan Party; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
relating to such Loan Party received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion
of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
(h) Designation. (i) Notwithstanding anything to the contrary
contained herein (but subject to Sections 2.18 and 2.19), any Lender (a
"Designating Lender") may grant to one or more special purpose funding
vehicles (each, an "SPV"), identified as such in writing from time to time
by the Designating Lender to the Agent and the Borrowers, the option to
provide to the Borrowers all or any part of any Advance that such
Designating Lender would otherwise be obligated to make to the Borrowers
pursuant to this Agreement; provided that (A) nothing herein shall
constitute a commitment by any SPV to make any Advance, (B) if an SPV fails
to provide all or any part of such Advance, the Designating Lender shall be
obligated to make such Advance pursuant to the terms hereof and (C) the
Designating Lender shall, at all times, remain liable for any indemnity or
other payment obligation with respect to its Commitment hereunder. The
making of a Advance by an SPV hereunder shall utilize the applicable
Commitment of the Designating Lender to the same extent, and as if such
Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV
shall have all the rights that the Designating Lender making such
Advances or portion thereof would have had under this Agreement;
provided, however, that each SPV shall have granted to its Designating
Lender an irrevocable power of attorney, to deliver and receive all
communications and notices under this Agreement and to exercise on
such SPV's behalf, all of such SPV's voting rights under this
Agreement. No additional Notes shall be required to evidence the
Advances or portion thereof made by an SPV; and the related
Designating Lender shall be deemed to hold its Note, if any, as agent
for such SPV to the extent of the Advances or portion thereof funded
by such SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable
for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party
hereto hereby agrees (which agreements 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 indebtedness of any SPV, it will not institute against,
or join any other person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 9.07(h) or otherwise in this Agreement, any
SPV may (A) at any time and without paying any processing fee
therefor, assign or sell a participation in all or a portion of its
interest in any Advances to the Designating Lender or to any financial
institutions providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Advances
and (B) disclose on a confidential basis any non-public information
relating to its Advances to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity
enhancements to such SPV. This Section 9.07(h) may not be amended
without the written consent of any Designating Lender affected
thereby.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the written
consent of the Borrowers, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective Eligible Assignees and
participants, and then only on a confidential
52
basis, (b) as required by any law, rule or regulation or judicial process and
(c) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the any such New York State
court or in such federal court may be made upon the Guarantor at its address set
forth in Section 9.02 and each such Borrower hereby irrevocably appoints the
Guarantor its authorized agent to accept such service of process, and agrees
that the failure of the Guarantor to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered in
any action or proceeding based thereon. Each Loan Party hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, such Loan Party at its address specified
pursuant to Section 9.02. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.12. Designated Borrowers. (a) Designation. The Loan Parties
may at any time and from time to time by delivery to the Agent of a Designation
Letter, duly executed by the Loan Parties and a wholly owned Foreign Subsidiary
and in substantially the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for all purposes of this Agreement, and, upon
fulfillment of the applicable conditions set forth in Section 3.02 and after
such Designation Letter is accepted by the Agent, such Subsidiary shall
thereupon become a Designated Subsidiary for all purposes of this Agreement and,
as such, shall have all of the rights and obligations of a Borrower hereunder.
The Agent shall promptly notify each Lender of each such designation by the Loan
Parties and the identity of each such Designated Subsidiary.
(b) Termination. Upon either (i) the assumption of all of the
indebtedness, liabilities and obligations of any Borrower under this
Agreement and the Notes issued by it by any other Borrower hereunder
pursuant to an assumption agreement in form and substance satisfactory to
the Agent (and subject to such other reasonable conditions as the Agent may
deem appropriate to evidence the authority and enforceability of such
assumption) or (ii) the payment and performance in full of all of the
indebtedness, liabilities and obligations of any Borrower under this
Agreement and the Notes issued by it, then, so long as at such time such
Borrower has not submitted a Notice of Borrowing or a Notice of Issuance,
such Borrower's status as a Borrower shall terminate upon notice to such
effect from the Agent to the Lenders (which notice the Agent shall promptly
deliver to the Lenders following its receipt of such a request from the
Guarantor). Thereafter, the Lenders shall be under no further obligation to
make any Advances to such Borrower.
53
SECTION 9.13. No Liability of the Issuing Banks. The Borrowers assume
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither an
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrowers shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrowers, to the extent of any direct, but not
consequential damages suffered by a Borrower that such Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation.
SECTION 9.14. Patriot Act. Each Lender hereby notifies each Loan Party
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other
information that will allow such Lender to identify such Loan Party in
accordance with the Act.
SECTION 9.15. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Euros or Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Euros or
Dollars, as the case may be, with such other currency at ABN AMRO's principal
office in London at 11:00 A.M. (London time) on the Business Day preceding that
on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
in any currency (the "Primary Currency") to any Lender or the Agent
hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by
such Lender or the Agent (as the case may be), of any sum adjudged to be so
due in such other currency, such Lender or the Agent (as the case may be)
may in accordance with normal banking procedures purchase the applicable
Primary Currency with such other currency; if the amount of the applicable
Primary Currency so purchased is less than such sum due to such Lender or
the Agent (as the case may be) in the applicable Primary Currency, such
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so
purchased exceeds such sum due to any Lender or the Agent (as the case may
be) in the applicable Primary Currency, such Lender or the Agent (as the
case may be) agrees to remit to such Borrower such excess.
[The remainder of this page is intentionally left blank.]
54
SECTION 9.16. Waiver of Jury Trial. Each of the Guarantor, the
Borrowers, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
EUROPE CHEMICAL HOLDINGS C.V.,
as Borrower
Represented by its general partner:
PERFORMANCE MATERIALS I INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
NOVEON HOLDINGS FRANCE S.A.S.,
as Borrower
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
On behalf of NOVEON EUROPE BVBA,
as Borrower
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Capacity:
-----------------------------
THE LUBRIZOL CORPORATION,
as Guarantor
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
ABN AMRO BANK N.V.,
as Agent
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
55
Initial Issuing Bank
ABN AMRO BANK N.V.
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Initial Lenders
ABN AMRO BANK N.V.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALYON
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CITIBANK, N.A. (LONDON BRANCH)
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
CITIBANK INTERNATIONAL PLC
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
MIZUHO CORPORATE BANK NEDERLAND N.V.
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
THE ROYAL BANK OF SCOTLAND PLC
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
56
FORTIS BANK (NEDERLAND) N.V.
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
DEUTSCHE BANK AG NEW YORK BRANCH
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
57
SCHEDULE I
APPLICABLE LENDING OFFICES
REVOLVING CREDIT LETTER OF CREDIT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
---------------------------- ---------------- ---------------- ------------------------------ ------------------------------
ABN AMRO Bank N.V. EUR 35,000,000 EUR 25,000,000 000 Xxxxx XxXxxxx Xxxxxx, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxx Attn: Xxxx Xxxx
F: 000 000-0000 F: 000 000-0000
The Bank of 20,000,000 0 6 Broadgate, 6 Broadgate,
Tokyo-Mitsubishi, Ltd. Xxxxxx XX0X 0XX Xxxxxx XX0X 0XX
Xxxxxxx Xxxxxxx
Any Commitments of The Bank Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
of Tokyo-Mitsubishi, Ltd. T: 32.2.551.44.80 T: 32.2.551.44.80
(including any branch F: 32.2.551.45.99 F: 32.2.551.45.99
thereof) to make Advances to
a Dutch Borrower shall, as
of the date of this
Agreement, be Commitments of
The Bank of
Tokyo-Mitsubishi, Ltd.,
London Branch; any
Commitments of The Bank of
Tokyo-Mitsubishi, Ltd.
(including any branch
thereof) to make Advances to
a Belgian Borrower shall, as
of the date of this
Agreement, be Commitments of
The Bank of
Tokyo-Mitsubishi, Ltd.,
Brussels Branch; and any
Commitments of The Bank of
Tokyo-Mitsubishi, Ltd.
REVOLVING CREDIT LETTER OF CREDIT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
---------------------------- ---------------- ---------------- ------------------------------ ------------------------------
(including any branch
thereof) to make Advances to
a Dutch Borrower shall, as
of the date of this
Agreement, be Commitments of
The Bank of
Tokyo-Mitsubishi, Ltd.,
London Branch
Calyon 35,000,000 0 9 Quai du President Pal Doumer 1301 Avenue of the Xxxxxxxx
00000 Xxxxx, Xxxxxx Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx/Xxxxx Attn: Xxx Xxxxxxxx
Xxxxxx T: 000-000-0000
T: 33 (0)0.00.00.00.00 F: 000-000-0000
F: 33 (0)0.00.00.00.00
Citibank, N.A. (London 35,000,000 0 XXX Xxxx., 0xx Xxxxx XXX Xxxx., 0xx Xxxxx
Branch)/Citibank 4 Harbour Exhange 4 Harbour Exhange
International plc Isle Of Dogs Isle Of Dogs
E14 9GE, Xxxxxx X00 0XX, Xxxxxx
Any Commitments of Citibank United Kingdom United Kingdom
N.A. (including any branch Attn: Xxx Xxxxx Attn: Xxx Xxxxx
thereof) and Citibank T: 0044 207 508 1775 T: 0044 207 508 1775
International plc to make F: 0044 207 942 7512 F: 0044 207 942 7512
Advances to a French
Borrower shall, as of the
date of this Agreement, be
Commitments of Citibank
International plc only; and
any Commitments of Citibank
N.A. (including any branch
thereof) and Citibank
International plc to make
Advances to a Belgian
Borrower or a Dutch Borrower
shall, as of the date of
this Agreement, be
2
REVOLVING CREDIT LETTER OF CREDIT
NAME OF INITIAL LENDER COMMITMENT COMMITMENT DOMESTIC LENDING OFFICE EUROCURRENCY LENDING OFFICE
---------------------------- ---------------- ---------------- ------------------------------ ------------------------------
Commitments of Citibank,
N.A. (including any branch
thereof) only
Deutsche Bank AG New York 20,000,000 0 00 Xxxxxx Xxxxxx, Xxxxx 1 00 Xxxxxx Xxxxxx, Xxxxx 1
Branch Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxx-Xxxxx Xxxxxx Attn: Xxx-Xxxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Fortis Bank (Nederland) N.V. 35,000,000 0 0 Xxxxxxxx Xxxxx 0 Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xx. 000 Xxxxxxx Xxxxxxxxx, 0xx Xx.
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx Attn: Xxxxx Xxxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
Mizuho Corporate Bank 35,000,000 0 Xxxxxxxxxx 000 Xxxxxxxxxx 171
Nederland N.V. 1077 AS Amsterdam 1077 AS Amsterdam
The Netherlands The Netherlands
Attn: Xxxx Xxx Xxxx Attn: Xxxx Xxx Xxxx
T: 31 20 5734310 T: 31 20 5734310
F: 31 20 5734372 F: 31 20 0000000
The Royal Bank of Scotland 35,000,000 0 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
xxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
3
SCHEDULE II
CALCULATION OF THE MANDATORY COST
1. GENERAL
The Mandatory Cost is the weighted average of the rates for each Lender
calculated below by the Agent on the first day of an Interest Period. The
Agent must distribute each amount of Mandatory Cost among the Lenders on
the basis of the relevant rate for each Lender.
2. FOR A LENDER LENDING FROM AN APPLICABLE LENDING OFFICE IN THE U.K.
(a) The relevant rate for a Lender lending from an Applicable Lending Office in
the U.K. is calculated in accordance with the following formula:
A x 0.01 per cent. per annum
--------
300
where on the day of application of the formula:
A is the charge payable by each Lender to the Financial Services
Authority under the fees regulations (but, for this purpose, ignoring
any minimum fee required under the fees regulations) and expressed in
pounds per L1 million of the fee base of that Lender.
(b) For the purposes of this paragraph 2:
(i) "fee base" has the meaning given to it in the fees regulations; and
(ii) "fees regulations" means The Financial Services Banking Supervision
(Fees) Regulations 2001.
(c) Each rate calculated in accordance with a formula is, if necessary, rounded
upward to four decimal places.
(d) (i) Each Lender must supply to the Agent the information required by it to
make a calculation of the rate for that Lender. The Agent may assume
that this information is correct in all respects.
(ii) If a Lender fails to do so, the Agent may assume that the Lender's
obligations in respect of the fees regulations are the same as those
of a typical bank from its jurisdiction of incorporation with an
Applicable Lending Office in the same jurisdiction as an Applicable
Lending Office.
(iii) The Agent has no liability to any party to the Agreement if its
calculation over or under compensates any Lender.
3. FOR A LENDER LENDING FROM AN APPLICABLE LENDING OFFICE IN A PARTICIPATING
MEMBER STATE
(a) The relevant rate for a Lender lending from an Applicable Lending Office in
a Participating Member State is the percentage rate per annum notified by
that Lender to the Agent as its cost (if any) of complying with the minimum
reserve requirements of the European Central Bank.
(b) If a Lender fails to specify a rate under paragraph (a) above, the Agent
will assume that the Lender has not incurred any such cost.
4. CHANGES
The Agent may, after consultation with the Loan parties and the Lenders,
notify all the parties to the Agreement of any amendment to this Schedule
which is required to reflect:
(a) any change in law or regulation of the United Kingdom or the European Union
relating to a cost of the type referred to in this Schedule; or
(b) any requirement imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any successor
authority).
Any notification will be, in the absence of manifest error, conclusive and
binding on all the parties to the Agreement.
2
SCHEDULE 2.01(B)
EXISTING LETTERS OF CREDIT
None.
SCHEDULE 3.01(B)
LITIGATION
None.
SCHEDULE 5.02(A)
LIENS
None.
EXHIBIT A - FORM OF
NOTE
EUR _______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to _________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of EUR [amount of the Lender's Revolving
Credit Commitment in figures] or, if less, the aggregate principal amount of the
Advances (as defined below) made by the Lender to the Borrower pursuant to the
Five Year Credit Agreement dated as of September 14, 2005 among the Borrower,
[Europe Chemical Holdings C.V.,] [Noveon Holdings France S.A.S.,] [Noveon Europe
BVBA, with its registered office at Xxxxxxxxxxxxxxxx 00, B-2260 Westerlo,
registered under RPR Enterprise number 0408454528, Commercial Court of Turnhout]
as Borrowers, The Lubrizol Corporation as Guarantor, the Lender and certain
other lenders parties thereto, and ABN AMRO Bank N.V., as Agent for the Lender
and such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest in respect of each Advance are payable in
the currency in which such Advance was made (either the lawful money of the
European Union or the lawful money of the United States of America). Each
Advance owing to the Lender by the Borrower pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note.
Both principal and interest in respect of each Advance (i) in Euros
are payable to the Agent at its account maintained at __________, in same day
funds and (ii) in Dollars are payable in lawful money of the United States of
America to the Agent at its account maintained at __________, in same day funds.
Each Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of advances (the "Advances") by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the Euro amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note, (ii) contains provisions for determining the Euro Equivalent of Advances
denominated in Dollars and (iii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
[NAME OF BORROWER]
By
-------------------------------------
Title:
---------------------------------
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
---- --------- -------------- ---------------- --------
2
EXHIBIT B - FORM OF NOTICE OF
BORROWING
ABN AMRO Bank N.V., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
[Address]
[Date] __________
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year Credit
Agreement, dated as of September 14, 2005 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, [Europe Chemical Holdings C.V.,]
[Noveon Holdings France S.A.S.,] [Noveon Europe BVBA, with its registered office
at Xxxxxxxxxxxxxxxx 00, B-2260 Westerlo, registered under RPR Enterprise number
0408454528, Commercial Court of Turnhout], as Borrowers, The Lubrizol
Corporation as Guarantor, certain Lenders parties thereto and ABN AMRO Bank
N.V., as Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________, 200_.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is [EUR]
[$]_______________].
[(iv) The initial Interest Period for each Eurocurrency Rate Advance
made as part of the Proposed Borrowing is _____ [days] [month[s]].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Article IV of the
Credit Agreement (except the representations set forth in the last sentence
of Section 4.01(e)) (and, if the undersigned is a Designated Subsidiary, in
the applicable Designation Letter) are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date except to the extent that
such representations and warranties expressly relate to an earlier
specified date; and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
-------------------------------------
Title:
---------------------------------
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement dated as of
September 14, 2005 (as amended or modified from time to time, the "Credit
Agreement") among Europe Chemical Holdings C.V., Noveon Holdings France S.A.S.
and Noveon Europe BVBA (with its registered office at Xxxxxxxxxxxxxxxx 00,
B-2260 Westerlo, registered under RPR Enterprise number 0408454528, Commercial
Court of Turnhout), as Borrowers, The Lubrizol Corporation as Guarantor, the
Lenders (as defined in the Credit Agreement) and ABN AMRO Bank N.V., as agent
for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement Facility on Schedule I hereto together with, in the case of an
assignment of a Revolving Credit Commitment, participations in Letters of Credit
held by the Assignor on the date hereof. After giving effect to such sale and
assignment, the Assignee's Commitment and the amount of the Advances owing to
the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note[, if any,] held by the Assignor [and requests that
the Agent exchange such Note for a new Note payable to [the Assignee in an
amount equal to the Revolving Credit Commitment assumed by the Assignee pursuant
hereto or new Notes payable to the Assignee in an amount equal to the Revolving
Credit Commitment assumed by the Assignee pursuant hereto and] the Assignor in
an amount equal to the Revolving Credit Commitment retained by the Assignor
under the Credit Agreement[, respectively,] as specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement; and (vii) hereby represents that (x) it is a PMP and (y) it is aware
that it does not benefit from the (creditor) protection offered by the Dutch
Banking Act when lending monies to persons or entities which are subject to the
prohibition of Article 82 of the Dutch Banking Act.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Revolving Credit Facility
Percentage interest assigned: ______%
Assignee's Revolving Credit Commitment: EUR______
Aggregate outstanding principal amount of Advances assigned: EUR______
Principal amount of Note payable to Assignee: EUR______
Principal amount of Note payable to Assignor: EUR______
Letter of Credit Facility
Percentage interest assigned: ______%
Assignee's Letter of Credit Commitment: EUR______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
-------------------------------------
Title:
---------------------------------
Dated: , 200
--------------- -
[NAME OF ASSIGNEE], as Assignee
By
-------------------------------------
Title:
---------------------------------
Dated: , 200
--------------- -
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
----------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
day of , 200
---------- --------------- -
ABN AMRO BANK N.V., as Agent
By
----------------------------------
Title:
------------------------------
[Approved this day
----------
of , 200
--------------- -
EUROPE CHEMICAL HOLDINGS C.V., as Borrower
Represented by its general partner:
PERFORMANCE MATERIALS I INC.
By
----------------------------------
Name:
-------------------------------
Title:
------------------------------
NOVEON HOLDINGS FRANCE S.A.S.
By
----------------------------------
Name:
-------------------------------
Title:
------------------------------
On behalf of NOVEON EUROPE BVBA
By
----------------------------------
Name:
-------------------------------
Title:
------------------------------
Capacity: ]*
---------------------------
----------
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1 - FORM OF
OPINION OF COUNSEL
FOR THE GUARANTOR
[Effective Date] ________________
To each of the Lenders parties
to the Five Year Credit Agreement
referred to below and
to ABN AMRO Bank N.V., as Agent
The Lubrizol Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(iv) of
the Five Year Credit Agreement, dated as of September 14, 2005 (the "Credit
Agreement"), among Europe Chemical Holdings C.V., Noveon Holdings France S.A.S.
and Noveon Europe BVBA (with its registered office at Xxxxxxxxxxxxxxxx 00,
B-2260 Westerlo, registered under RPR Enterprise number 0408454528, Commercial
Court of Turnhout) as Borrowers, The Lubrizol Corporation as Guarantor, the
Lenders parties thereto and ABN AMRO Bank N.V., as Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.
I am Vice President and General Counsel for the Guarantor, and have
also acted as in-house counsel to the other Loan Parties, in connection with the
preparation, execution and delivery of the Loan Documents.
In that connection, I have examined:
(1) The Credit Agreement.
(2) The documents furnished by each Loan Party pursuant to Section
3.01 of the Credit Agreement.
(3) The Amended Articles of Incorporation and all amendments thereto
(the "Articles") of the Guarantor.
(4) The Code of Regulations of the Guarantor and all amendments
thereto (the "Regulations").
(5) A certificate of the Secretary of State of Ohio, dated
_______________, 2005, attesting to the continued corporate existence and
good standing of the Guarantor in that State.
I have also examined the originals, or copies certified to my satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Guarantor, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guaranties, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect each Loan
Party's right to borrow money or such Loan Party's obligations under the Loan
Documents. In addition, I have examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Loan Parties, certificates
of public officials and of officers of the
Loan Parties, and agreements, instruments and other documents, as I have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of the Loan Parties or their
officers or of public officials. I have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement and the other Loan
Documents to which each such Person is a party by, each Borrower, the Initial
Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
Ohio and the Federal law of the United States.
Based upon the foregoing, subject to the qualifications set forth
below and upon such investigation as I have deemed necessary, I am of the
following opinion:
1. The Guarantor is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation.
2. The execution, delivery and performance by the Guarantor of the
Credit Agreement, and the consummation of the transactions contemplated
thereby, are within the Guarantor's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Articles or the Regulations of the Guarantor or (ii) any law, rule or
regulation applicable to the Guarantor (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or
(iii) any contractual or legal restriction contained in any document listed
in the Certificate or, to the best of my knowledge, contained in any other
similar document. The Credit Agreement has been duly executed and delivered
on behalf of the Guarantor.
3. The execution, delivery and performance by each Borrower of the
Loan Documents to which it is a party, and the consummation of the
transactions contemplated thereby do not contravene (i) any law, rule or
regulation (other than the laws, rules and regulations of the Netherlands
or Belgium, as to which I express no opinion) applicable to such Loan Party
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System) or (iii) any contractual or legal restriction
contained in any document to which such Loan Party is a party that is
listed in the Certificate or, to the best of my knowledge, contained in any
other similar document to which such Loan Party is a party.
4. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Guarantor of the Credit Agreement.
5. To the best of my knowledge, there are no pending or overtly
threatened actions or proceedings against the Guarantor or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the legality, validity, binding effect or enforceability
of any Loan Document or the consummation of the transactions contemplated
thereby or, except as described in Schedule 3.01(b) to the Credit
Agreement, that are likely to have a Material Adverse Effect.
6. Courts of the State of Ohio and Federal courts sitting in the State
of Ohio will respect a contractual choice of law made in a contract, such
as Section 9.09 of the Credit Agreement, and will apply the laws of the
chosen state, unless either the chosen state has no substantial
relationship to the parties or the transaction and there is no reasonable
basis for the parties' choice, or application of the laws of the chosen
state would be contrary to the fundamental policy of a state having a
greater material interest in the issue than the chosen state and such state
would be the state of applicable law in the absence of a choice by the
parties. Under this test, although I find no authority in point and cannot
opine definitely, I believe on a reasoned basis, that in any action or
proceeding arising out of or relating to the Credit Agreement in any court
of the State of Ohio or in any Federal court sitting in the State of Ohio,
such court would recognize and give effect to the provisions of Section
9.09 of the Credit Agreement wherein the parties thereto agree that the
Credit Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York. Without limiting the generality of the
foregoing and on the same reasoned basis, I believe that
2
a court of the State of Ohio or a Federal court sitting in the State of
Ohio would apply the usury law of the State of New York, and would not
apply the usury law of the State of Ohio, to the Credit Agreement. However,
if a court of the State of Ohio or a Federal court sitting in the State of
Ohio were to hold that the Credit Agreement are governed by, and to be
construed in accordance with, the laws of the State of Ohio, the Credit
Agreement would be, under the laws of the State of Ohio, legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in the last sentence of paragraph 6 above as to
enforceability is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar law affecting creditors'
rights generally.
(b) My opinion in the last sentence of paragraph 6 above as to
enforceability is subject to the effect of general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(c) I express no opinion as to (i) Section 2.15 of the Credit
Agreement insofar as it provides that any Lender purchasing a participation
from another Lender pursuant thereto may exercise set-off or similar rights
with respect to such participation and (ii) the effect of the law of any
jurisdiction other than the State of Ohio wherein any Lender may be located
or wherein enforcement of the Credit Agreement may be sought that limits
the rates of interest legally chargeable or collectible.
(d) My opinion in paragraph 4 above is not intended to cover consents,
approvals or filings that might be required as a result of the ordinary
course of conduct by the Guarantor of its businesses and operations.
(e) The opinions expressed herein are as of the date of this opinion
letter only and as to the laws covered hereby only as they are in effect on
that date and I assume no obligation to update or supplement such opinions
to reflect any facts or circumstances that may come to my attention after
that date or any changes in law that may occur or become effective after
that date.
This opinion is solely for your benefit and for the benefit of your
successors and assigns in connection with the transactions contemplated by
the Loan Documents and is not to be given to or relied on by any other
person or entity or for any other purpose without my prior written consent.
Very truly yours,
----------------------------------------
XXXXXX X. XXXXX
Vice President and General Counsel for
The Lubrizol Corporation
3
EXHIBIT E
FORM OF DESIGNATION LETTER
[Date] __________
To each of the Lenders parties
to the Five Year Credit Agreement
referred to below and
to ABN AMRO Bank N.V., as Agent
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as of
September 14, 2005 (as amended or modified from time to time, the "Credit
Agreement") among Europe Chemical Holdings C.V., Noveon Holdings France S.A.S.
and Noveon Europe BVBA (with its registered office at Xxxxxxxxxxxxxxxx 00,
B-2260 Westerlo, registered under RPR Enterprise number 0408454528, Commercial
Court of Turnhout), as Borrowers (the "Borrowers"), The Lubrizol Corporation as
guarantor (the "Guarantor"), the Lenders (as defined in the Credit Agreement)
and ABN AMRO Bank N.V., as agent for the Lenders (the "Agent"). Terms defined in
the Credit Agreement are used herein with the same meaning.
Please be advised that the Borrowers and the Guarantor hereby
designate the undersigned wholly owned Foreign Subsidiary, ____________, a
_________ (the "Designated Subsidiary"), as a "Designated Subsidiary" and a
"Borrower" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of the agreement of each
Lender to extend credit to it from time to time under, and on the terms and
conditions set forth in, the Credit Agreement does hereby assume each of the
obligations imposed upon a Designated Subsidiary and a Borrower under the Credit
Agreement and agrees to be bound by all of the terms and conditions of the
Credit Agreement. The Designated Subsidiary has, on the date hereof, delivered
to the Agent a properly completed and duly executed Note, in substantially the
form of Exhibit A to the Credit Agreement, payable to each Lender that has made
a request pursuant to Section 2.16 of the Credit Agreement.
In furtherance of the foregoing, the Designated Subsidiary hereby
represents and warrants to the Agent and each of the Lenders as follows:
1. The Designated Subsidiary is a Person duly organized, validly
existing and, to the extent such concept is applicable in the jurisdiction
of organization of the Designated Subsidiary, in good standing under the
laws of __________.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement and the Notes
issued by the Designated Subsidiary and the consummation of the
transactions contemplated hereby and thereby, are within the Designated
Subsidiary's powers, have been duly authorized by all necessary action
(including, without limitation, all necessary stockholders' action, to the
extent applicable), and do not contravene (a) the Designated Subsidiary's
charter or by-laws (or similar organizational documents) or (b) any
applicable law or any contractual restriction binding on or affecting the
Designated Subsidiary.
3. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Designated Subsidiary of this Designation Letter, the Credit Agreement
or any of the Notes issued by the Designated Subsidiary, or for the
consummation of the transactions contemplated hereby and thereby, except as
have been obtained or made and are in full force and effect.
4. This Designation Letter has been, and each of the Notes issued by
the Designated Subsidiary when executed and delivered under the Credit
Agreement will have been, duly executed and delivered by the Designated
Subsidiary. Each of this Designation Letter and the Credit Agreement is,
and each of the Notes issued by the Designated Subsidiary when delivered
under the Credit Agreement will be, the legal, valid and binding obligation
of the Designated Subsidiary, enforceable against the Designated Subsidiary
in accordance with their respective terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or law).
5. There is no pending or, to the knowledge of the Designated
Subsidiary, threatened action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
affecting the Designated Subsidiary or any of its Subsidiaries before any
court, governmental agency or arbitrator that (i) could reasonably be
expected to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Designation Letter, the Credit
Agreement or any of the Notes issued by the Designated Subsidiary, or the
consummation of the transactions contemplated hereby and thereby.
6. The Designated Subsidiary is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance to the Designated
Subsidiary will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying margin stock.
The Designated Subsidiary hereby irrevocably appoints the Guarantor as
its authorized agent to receive and deliver notices in accordance with Section
9.02(b) of the Credit Agreement, and hereby irrevocably agrees that in the case
of any notices delivered to the Guarantor, on behalf of the Designated
Subsidiary, in accordance with Section 9.02(b) of the Credit Agreement, the
failure of the Guarantor to give any notice referred to therein to the
Designated Subsidiary shall not impair or affect the validity of such notice
with respect thereto.
The Designated Subsidiary hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York state court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Designation Letter, the Credit
Agreement or any of the Notes issued by the Designated Subsidiary or for
recognition or enforcement of any judgment, and hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by applicable law, in such federal court. The Designated
Subsidiary hereby further irrevocably consents to the service of process in any
action or proceeding in such courts by the mailing thereof by any Lender or the
Agent by registered or certified mail, postage prepaid, to it at its address
specified below its name on the signature page hereto. The Designated Subsidiary
hereby further agrees that service of process in any such action or proceeding
brought in any such New York State court or in any such federal court may be
made upon the Guarantor at the address referred to in Section 9.02 of the Credit
Agreement, and the Designated Subsidiary hereby irrevocably appoints the
Guarantor as its authorized agent to accept such service of process, and agrees
that the failure of the Guarantor to give any notice of any such service to it
shall not impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. The Designated Subsidiary
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable law. Nothing in this Designation
Letter, the Credit Agreement or any of the Notes issued by the Designated
Subsidiary shall affect any right that any party may otherwise have to serve
legal process in any other manner permitted by applicable law or to bring any
action or proceeding relating to this Designation Letter, the Credit Agreement
or any such Note in the courts of any jurisdiction.
The Designated Subsidiary irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit,
2
action or proceeding arising out of or relating to this Designation Letter, the
Credit Agreement or any of the Notes issued by it in any New York state or
federal court. The Designated Subsidiary hereby irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
To the extent that the Designated Subsidiary has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, the Designated Subsidiary hereby irrevocably waives such immunity in
respect of its obligations under this Designation Letter, the Credit Agreement
or any of the Notes issued by it.
The Designated Subsidiary hereby irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Designation Letter, the
Credit Agreement or any of the Notes issued by it or the actions of the Agent or
any Lender in the negotiation, administration, performance or enforcement
thereof.
Very truly yours,
EUROPE CHEMICAL HOLDINGS C.V.,
as Borrower
Represented by its general partner:
PERFORMANCE MATERIALS I INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NOVEON HOLDINGS FRANCE S.A.S.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
On behalf of NOVEON EUROPE BVBA
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Capacity:
------------------------------
3
[THE DESIGNATED SUBSIDIARY]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
-------------------------------
THE LUBRIZOL CORPORATION, as Guarantor
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Acknowledged and Agreed to as of
the date first above written:
ABN AMRO BANK N.V., as Agent
By
----------------------------------
Name:
-------------------------------
Title:
------------------------------
4
