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Exhibit 10.1
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$430,000,000
CREDIT AGREEMENT
Dated as of March 31, 2006
Among
NUANCE COMMUNICATIONS, INC.
as Borrower,
THE LENDERS PARTY HERETO,
UBS AG, STAMFORD BRANCH,
as Administrative Agent,
CREDIT SUISSE SECURITIES (USA) LLC,
as Syndication Agent,
and
CITICORP NORTH AMERICA, INC.,
as Documentation Agent
----------
UBS SECURITIES LLC and CREDIT SUISSE SECURITIES (USA) LLC,
as Joint Lead Arrangers,
CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA SECURITIES
LLC,
as Co-Arrangers
and
UBS SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Bookrunners
----------
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined Terms............................................
1
SECTION 1.02.
Terms Generally..........................................
34
SECTION 1.03.
Effectuation of Transfers................................
34
ARTICLE II
THE CREDITS
SECTION 2.01.
Commitments..............................................
34
SECTION 2.02.
Loans and Borrowings.....................................
35
SECTION 2.03.
Requests for Borrowings..................................
35
SECTION 2.04.
Swingline Loans..........................................
36
SECTION 2.05.
Letters of Credit........................................
37
SECTION 2.06.
Funding of Borrowings....................................
42
SECTION 2.07.
Interest Elections.......................................
42
SECTION 2.08.
Termination and Reduction of Commitments.................
43
SECTION 2.09.
Repayment of Loans; Evidence of Debt.....................
44
SECTION 2.10.
Repayment of Term Loans and Revolving Facility Loans.....
45
SECTION 2.11.
Prepayment of Loans......................................
46
SECTION 2.12.
Fees.....................................................
47
SECTION 2.13.
Interest.................................................
48
SECTION 2.14.
Alternate Rate of Interest...............................
48
SECTION 2.15.
Increased Costs..........................................
49
SECTION 2.16.
Break Funding Payments...................................
50
SECTION 2.17.
Taxes....................................................
50
SECTION 2.18.
Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.............................................. 52
SECTION 2.19.
Mitigation Obligations; Replacement of Lenders...........
53
SECTION 2.20.
Illegality...............................................
54
SECTION 2.21.
Incremental Extensions of Credit.........................
55
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01.
Organization; Powers.....................................
56
SECTION 3.02.
Authorization............................................
56
SECTION 3.03.
Enforceability...........................................
56
SECTION 3.04.
Governmental Approvals...................................
57
SECTION 3.05.
Financial Statements.....................................
57
SECTION 3.06. No
Material Adverse Change or Material Adverse Effect.... 58
SECTION 3.07.
Title to Properties; Possession Under Leases.............
58
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SECTION 3.08.
Subsidiaries.............................................
59
SECTION 3.09.
Litigation; Compliance with Laws.........................
59
SECTION 3.10.
Federal Reserve Regulations..............................
59
SECTION 3.11.
Investment Company Act...................................
59
SECTION 3.12.
Use of Proceeds..........................................
59
SECTION 3.13.
Tax Returns..............................................
60
SECTION 3.14. No
Material Misstatements................................ 60
SECTION 3.15.
Employee Benefit Plans...................................
61
SECTION 3.16.
Environmental Matters....................................
61
SECTION 3.17.
Security Documents.......................................
61
SECTION 3.18.
Location of Real Property and Leased Premises............
62
SECTION 3.19.
Solvency.................................................
63
SECTION 3.20.
Labor Matters............................................
63
SECTION 3.21.
Insurance................................................
63
SECTION 3.22.
Anti-Terrorism Law.......................................
64
SECTION 3.23.
Acquisition Agreement; Representations and Warranties in
Acquisition Agreement................................. 65
SECTION 3.24.
Intellectual Property....................................
65
SECTION 3.25.
Agreements...............................................
65
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01.
All Credit Events........................................
66
SECTION 4.02.
First Credit Event.......................................
67
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01.
Existence; Businesses and Properties.....................
69
SECTION 5.02.
Insurance................................................
70
SECTION 5.03.
Taxes....................................................
70
SECTION 5.04.
Financial Statements, Reports, etc.......................
71
SECTION 5.05.
Litigation and Other Notices.............................
72
SECTION 5.06.
Compliance with Laws.....................................
72
SECTION 5.07.
Maintaining Records; Access to Properties and
Inspections........................................... 73
SECTION 5.08.
Use of Proceeds..........................................
73
SECTION 5.09.
Compliance with Environmental Laws.......................
73
SECTION 5.10.
Further Assurances; Mortgages............................
73
SECTION 5.11.
Fiscal Year; Accounting..................................
75
SECTION 5.12.
Maintenance of Ratings...................................
75
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01.
Indebtedness.............................................
75
SECTION 6.02.
Liens....................................................
77
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SECTION 6.03.
Sale and Lease-Back Transactions.........................
80
SECTION 6.04.
Investments, Loans and Advances..........................
80
SECTION 6.05.
Mergers, Consolidations, Sales of Assets and
Acquisitions.......................................... 82
SECTION 6.06.
Dividends and Distributions..............................
84
SECTION 6.07.
Transactions with Affiliates.............................
84
SECTION 6.08.
Business of the Borrower and the Subsidiaries............
85
SECTION 6.09.
Limitation on Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws
and Certain Other Agreements; etc..................... 86
SECTION 6.10.
Maximum Capital Expenditures.............................
87
SECTION 6.11.
Interest Coverage Ratio..................................
88
SECTION 6.12.
Consolidated Leverage Ratio..............................
88
SECTION 6.13.
Swap Agreements..........................................
88
SECTION 6.14. No
Other "Designated Senior Indebtedness"................ 88
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01.
Events of Default........................................
88
SECTION 7.02.
Exclusion of Immaterial Subsidiaries.....................
91
SECTION 7.03.
Borrower's Right to Cure.................................
91
ARTICLE VIII
THE AGENTS
SECTION 8.01.
Appointment..............................................
92
SECTION 8.02.
Delegation of Duties.....................................
92
SECTION 8.03.
Exculpatory Provisions...................................
92
SECTION 8.04.
Reliance by Administrative Agent.........................
92
SECTION 8.05.
Notice of Default........................................
93
SECTION 8.06.
Non-Reliance on Agents and Other Lenders.................
93
SECTION 8.07.
Indemnification..........................................
93
SECTION 8.08.
Agent in Its Individual Capacity.........................
94
SECTION 8.09.
Successor Administrative Agent...........................
94
SECTION 8.10.
Syndication Agent and Documentation Agent................
94
SECTION 8.11.
Quebec Security..........................................
94
ARTICLE
IX
MISCELLANEOUS
SECTION 9.01.
Notices..................................................
95
SECTION 9.02.
Survival of Agreement....................................
95
SECTION 9.03.
Binding Effect...........................................
96
SECTION 9.04.
Successors and Assigns...................................
96
SECTION 9.05.
Expenses; Indemnity......................................
99
SECTION 9.06.
Right of Set-off.........................................
100
SECTION 9.07.
Applicable Law...........................................
100
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SECTION 9.08.
Waivers; Amendment.......................................
101
SECTION 9.09.
Interest Rate Limitation.................................
102
SECTION 9.10.
Entire Agreement.........................................
102
SECTION 9.11.
WAIVER OF JURY TRIAL.....................................
103
SECTION 9.12.
Severability.............................................
103
SECTION 9.13.
Counterparts.............................................
103
SECTION 9.14.
Headings.................................................
103
SECTION 9.15.
Jurisdiction; Consent to Service of Process..............
103
SECTION 9.16.
Confidentiality..........................................
104
SECTION 9.17.
Direct Website Communications............................
104
SECTION 9.18.
Release of Liens and Guarantees..........................
105
SECTION 9.19.
USA Patriot Act..........................................
106
SECTION 9.20.
Dollar Equivalent Calculations...........................
106
SECTION 9.21.
Judgment Currency........................................
106
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Exhibits and Schedules
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Exhibit A
Form of Assignment and Acceptance
Exhibit B
Form of Administrative Questionnaire
Exhibit C-1
Form of Borrowing Request
Exhibit C-2
Form of Swingline Borrowing Request
Exhibit D
Form of Collateral Agreement
Exhibit E
Form of Solvency Certificate
Exhibit F-1
Form of Term Loan Note
Exhibit F-2
Form of Revolving Loan Note
Schedule 1.01(a)
Pro Forma EBITDA
Schedule 2.01
Commitments
Schedule 3.01
Organization and Good Standing
Schedule 3.04
Governmental Approvals
Schedule 3.07(b)
Possession under Leases
Schedule 3.08(a)
Subsidiaries
Schedule 3.09
Litigation
Schedule 3.13 Taxes
Schedule 3.16
Environmental Matters
Schedule 3.20 Labor
Matters
Schedule 3.21
Insurance
Schedule 3.23
Acquisition Agreement
Schedule 3.24(b)
Intellectual Property
Schedule 3.24(c)
Intellectual Property
Schedule 3.25
Agreements
Schedule 4.02(b)
Local Counsel
Schedule 6.01
Indebtedness
Schedule 6.02(a)
Liens
Schedule 6.04
Investments
Schedule 6.07
Transactions with Affiliates
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<PAGE>
CREDIT AGREEMENT dated as of March 31, 2006 (as amended,
supplemented
or otherwise modified from time to time, this "Agreement"), among
NUANCE
COMMUNICATIONS, INC., a Delaware corporation ("Borrower"), the
LENDERS party
hereto from time to time, UBS AG, STAMFORD BRANCH, as
administrative agent (in
such capacity, the "Administrative Agent"), CREDIT SUISSE
SECURITIES (USA) LLC,
as syndication agent (in such capacity, the "Syndication Agent"),
CITICORP NORTH
AMERICA, INC., as documentation agent (in such capacity, the
"Documentation
Agent"), UBS SECURITIES LLC and CREDIT SUISSE SECURITIES (USA) LLC,
as joint
lead arrangers (collectively and in such capacities, the "Joint
Lead
Arrangers"), CITIGROUP GLOBAL MARKETS INC. and BANC OF AMERICA
SECURITIES LLC,
as co-arrangers, UBS SECURITIES LLC, CREDIT SUISSE SECURITIES (USA)
LLC and
CITIGROUP GLOBAL MARKETS INC., as joint bookrunners.
Pursuant to and in connection with the Acquisition Agreement
(with
such term and each other capitalized term used but not defined in
this preamble
having the meaning assigned thereto in Article I) and the
transactions
contemplated thereby, (a) the Acquisition will be consummated in
accordance with
the terms of the Acquisition Agreement and (b) the Transaction
Costs will be
paid.
The Borrower has requested that the Lenders extend credit in the
form
of (a) Term Loans on the Closing Date in an aggregate principal
amount of $355.0
million and (b) Revolving Facility Loans, Swingline Loans and
Letters of Credit
at any time and from time to time prior to the Revolving Facility
Maturity Date
in an aggregate principal amount at any time outstanding not in
excess of $75.0
million.
The Lenders are willing to extend such credit to the Borrower,
the
Swingline Lender is willing to make Swingline Loans to the Borrower
and the
Issuing Bank is willing to issue Letters of Credit for the account
of the
Borrower on the terms and subject to the conditions set forth
herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following
terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, is used
when
such Loan, or the Loans comprising such Borrowing, are bearing
interest at a
rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Loan.
"ABR Revolving Borrowing" shall mean a Borrowing comprised of
ABR
Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Facility Loan
bearing
interest at a rate determined by reference to the ABR in accordance
with the
provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a
rate
determined by reference to the ABR in accordance with the
provisions of Article
II.
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"Acquisition Agreement" shall mean the collective reference to
the
Agreement and Plan of Merger among Dictaphone, the Borrower and
Merger Sub dated
as of February 7, 2006 and all material exhibits and schedules to
such
agreement.
"Acquisition" shall mean the acquisition of Dictaphone by the
Borrower
pursuant to the Acquisition Agreement.
"Adjusted LIBO Rate" shall mean, with respect to any
Eurocurrency
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate
in effect for
such Interest Period divided by (b) one minus the Statutory
Reserves applicable
to such Eurocurrency Borrowing, if any.
"Adjustment Date" shall have the meaning assigned to such term in
the
definition of "Pricing Grid."
"Administrative Agent" shall have the meaning assigned to such term
in
the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned to
such
term in Section 2.12(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" shall mean, when used with respect to a specified
person,
another person that directly, or indirectly through one or more
intermediaries,
Controls or is Controlled by or is under common Control with the
person
specified; provided, however, no Agent or Lender shall be deemed to
be an
Affiliate of any Loan Party by virtue of its execution of this
Agreement.
"Agent Parties" shall have the meaning assigned to such term in
Section 9.17(c).
"Agents" shall mean the Administrative Agent and the Syndication
Agent
and the Documentation Agent.
"Agreement" shall have
the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal
to the
greater of (a) the Base Rate in effect on such day and (b) the
Federal Funds
Effective Rate in effect on such day plus 0.50%. If the
Administrative Agent
shall have determined (which determination shall be conclusive
absent manifest
error) that it is unable to ascertain the Federal Funds Effective
Rate for any
reason, including the inability or failure of the Administrative
Agent to obtain
sufficient quotations in accordance with the terms of the
definition thereof,
the Alternate Base Rate shall be determined without regard to
clause (b) of the
preceding sentence until the circumstances giving rise to such
inability no
longer exist. Any change in the Alternate Base Rate due to a change
in the Base
Rate or the Federal Funds Effective Rate shall be effective on the
effective
date of such change in the Base Rate or the Federal Funds Effective
Rate,
respectively.
"Alternate Currency" shall mean each of euros, pounds, yen and
Canadian dollars.
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"Alternate Currency Equivalent" shall mean, as to any amount
denominated in dollars as of any date of determination, the amount
of the
applicable Alternate Currency that could be purchased with such
amount of
dollars based upon the Spot Selling Rate.
"Alternate Currency L/C Disbursement" shall mean a payment or
distribution made by an Issuing Bank pursuant to an Alternate
Currency Letter of
Credit.
"Alternate Currency L/C Exposure" shall mean at any time the sum
of
(a) the aggregate undrawn amount of all Alternate Currency Letters
of Credit
outstanding at such time and (b) the aggregate principal amount of
all Alternate
Currency L/C Disbursements that have not yet been reimbursed at
such time.
"Alternate Currency L/C Sublimit" shall mean the maximum
principal
amount of Alternate Currency Letters of Credit that may be
outstanding at any
one time in Alternate Currencies, not to exceed the Dollar
Equivalent of $10.0
million.
"Alternate Currency Letter of Credit" shall mean any Letter of
Credit
to the extent denominated in an Alternate Currency.
"Anti-Terrorism Law" shall have the meaning assigned to such term
in
Section 3.22(a).
"Applicable Margin" shall mean, for any day, 2.00% per annum in
the
case of any Eurocurrency Loan and 1.00% per annum in the case of
any ABR Loan;
provided that on and after the first Adjustment Date, the
Applicable Margin for
the Loans will be determined pursuant to the Pricing Grid.
"Approved Currency" shall mean Dollars and each Alternate
Currency.
"Approved Fund" shall have the meaning assigned to such term in
Section 9.04(b).
"Assignee" shall have them meaning assigned to such term in
Section
9.04(b).
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative
Agent and the Borrower (if required by such assignment and
acceptance), in the
form of Exhibit A or such other form as shall be approved by the
Administrative
Agent.
"Auto-Renewal Letter of Credit" shall have the meaning assigned
to
such term in Section 2.05(c).
"Availability Period" shall mean the period from and including
the
Closing Date to but excluding the earlier of the Revolving Facility
Maturity
Date and in the case of each of the Revolving Facility Loans,
Revolving Facility
Borrowings, Swingline Loans, Swingline Borrowings and Letters of
Credit, the
date of termination of the Revolving Facility Commitments.
"Available Investment Basket Amount" shall mean, on any date of
determination, an amount equal to (a) the Cumulative Retained
Excess Cash Flow
Amount on such date, plus (b) the aggregate amount of proceeds
received after
the Closing Date and prior to such date that would have constituted
Net Proceeds
pursuant to clause (a) of the definition thereof except for the
operation of
clause (x) or (y) of the second proviso thereof plus (c) the
cumulative amount
of cash proceeds (other than proceeds from the issuance of
Permitted Cure
Securities) from the sale of Equity Interests of the Borrower after
the Closing
Date, to the extent not used for expenditures pursuant to clause
(k) of the
definition of Capital
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Expenditures, minus (d) any amounts thereof used to make
Investments pursuant to
Section 6.04(b)(y) after the Closing Date and on or prior to such
date, minus
(e) any amounts thereof used to make Investments pursuant to
Section 6.04(j)(ii)
after the Closing Date and on or prior to such date, minus (f) the
cumulative
amount of dividends paid and distributions made pursuant to Section
6.06(c)(ii),
minus (g) the cumulative amount of repurchases, redemptions,
acquisitions,
cancellations and terminations pursuant to Section 6.09(b), minus
(h) the
cumulative amount of Capital Expenditures made pursuant to Section
6.10(a)(i)(B)
and 6.10(a)(ii)(B).
"Available Unused Commitment" shall mean, with respect to a
Revolving
Facility Lender at any time, an amount equal to the amount by which
(a) the
Revolving Facility Commitment of such Revolving Facility Lender at
such time
exceeds (b) the Revolving Facility Credit Exposure of such
Revolving Facility
Lender at such time.
"Base Rate" shall mean, for any day, a rate per annum that is equal
to
the corporate base rate of interest established by the
Administrative Agent from
time to time; each change in the Base Rate shall be effective on
the date such
change is effective. The corporate base rate is not necessarily the
lowest rate
charged by the Administrative Agent to its customers.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States of America.
"Borrower" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Borrowing" shall mean a group of Loans of a single Type under
a
single Facility and made on a single date and, in the case of
Eurocurrency
Loans, as to which a single Interest Period is in effect.
"Borrowing Minimum" shall mean $500,000.
"Borrowing Multiple" shall mean $100,000.
"Borrowing Request" shall mean a request by the Borrower in
accordance
with the terms of Section 2.03 and substantially in the form of
Exhibit C-1.
"Budget" shall have the meaning assigned to such term in
Section
5.04(e).
"Business Day" shall mean any day that is not a Saturday, Sunday
or
other day on which commercial banks in New York City are authorized
or required
by law to remain closed; provided that when used in connection with
a
Eurocurrency Loan, the term "Business Day" shall also exclude any
day on which
banks are not open for dealings in deposits in the applicable
currency in the
London interbank market.
"Canadian dollars" or "Can$" shall mean the lawful money of
Canada.
"Capital Expenditures" shall mean, for any person in respect of
any
period, the aggregate of all expenditures incurred by such person
during such
period that, in accordance with GAAP, are or should be included in
"additions to
property, plant or equipment" or similar items reflected in the
statement of
cash flows of such person, provided, however, that Capital
Expenditures for the
Borrower and its Subsidiaries shall not include:
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(a) expenditures to the extent they are made with funds that
would
have
constituted Net Proceeds under clause (a) of the definition of
the
term
"Net Proceeds" (but that will not constitute Net Proceeds as a
result
of
the first proviso to such clause (a)),
(b) expenditures of proceeds of insurance settlements,
condemnation
awards and other settlements in respect of lost, destroyed, damaged
or
condemned assets,
equipment or other property to the extent such
expenditures are made to replace or repair such lost, destroyed,
damaged or
condemned assets, equipment or other property or otherwise to
acquire,
maintain, develop, construct, improve, upgrade or repair assets
or
properties useful in the business of the Borrower and its
Subsidiaries,
(c) interest capitalized during such period,
(d) expenditures that constitute lease expenses,
(e) expenditures that are accounted for as capital expenditures
of
such
person and that actually are paid for by a third party (excluding
the
Borrower or any Subsidiary) and for which neither the Borrower nor
any
Subsidiary has provided or is required to provide or incur,
directly or
indirectly, any consideration or obligation to such third party or
any
other person (whether before, during or after such period),
(f) the book value of any asset owned by such person prior to
or
during such period to the extent that such book value is included
as a
capital expenditure during such period as a result of such person
reusing
or
beginning to reuse such asset during such period without a
corresponding
expenditure actually having been made in such period; provided that
(i) any
expenditure necessary in order to permit such asset to be reused
shall be
included as a Capital Expenditure during the period that such
expenditure
actually is made and (ii) such book value shall have been included
in
Capital Expenditures when such asset was originally acquired,
(g) the purchase price of equipment purchased during such period
to
the
extent the consideration therefor consists of any combination of
(i)
used or surplus
equipment traded in at the time of such purchase and (ii)
the
proceeds of a concurrent sale of used or surplus equipment, in
each
case, in the ordinary course of business,
(h) expenditures that constitute Permitted Business
Acquisitions,
(i) expenditures that constitute the Acquisition,
(j) expenditures to the extent they are financed with the proceeds
of
a
disposition of used, obsolete, worn out or surplus equipment or
property
in
the ordinary course of business or a disposition that would result
in a
prepayment of the Loans, pursuant to Section 2.11(b), of Net
Proceeds of
the
type described in clause (a) of such definition, but for the
proviso at
the
end of such definition, or
(k) any expenditure made with the proceeds of an issuance of
Equity
Interests of Borrower after the Closing Date.
"Capital Lease Obligations" of any person shall mean the
obligations
of such person to pay rent or other amounts under any lease of (or
other
arrangement conveying the right to use) real or personal property,
or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such person
under GAAP
and, for purposes hereof, the amount
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of such obligations at any time shall be the capitalized amount
thereof at such
time determined in accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the Borrower
and
its Subsidiaries on a consolidated basis for any period, Interest
Expense for
such period, less the sum of (a) pay-in-kind Interest Expense or
other non-cash
Interest Expense, (b) to the extent included in Interest Expense,
the
amortization of any financing fees paid by, or on behalf of, the
Borrower or any
Subsidiary, including such fees paid in connection with the
Transactions, (c)
the amortization of debt discounts, if any, or fees in respect of
Swap
Agreements and (d) cash interest income of the Borrower and its
Subsidiaries for
such period; provided that Cash Interest Expense shall exclude any
one-time
financing fees, including those paid in connection with the
Transactions or any
amendment of this Agreement and non-recurring cash interest expense
consisting
of liquidated damages for failure to timely comply with
registration rights
obligations. Notwithstanding anything to the contrary contained
herein, for
purposes of determining Cash Interest Expense for any period ending
prior to the
first anniversary of the Closing Date, Cash Interest Expense shall
be an amount
equal to actual Cash Interest Expense from the Closing Date through
the date of
determination multiplied by a fraction the numerator of which is
365 and the
denominator of which is the number of days from the Closing Date
through the
date of determination.
"Cash Management Obligations" shall mean obligations owed by any
Loan
Party to any Lender or Affiliate of any Lender in respect of any
overdraft and
related liabilities arising from treasury and cash management
services or any
automated clearing house transfer of funds.
A "Change in Control" shall mean:
(a) the acquisition of ownership, directly or indirectly,
beneficially
or of record, by any person
or group (within the meaning of the Exchange
Act
and the rules of the SEC thereunder as in effect on the Closing
Date)
of
Equity Interests representing more than a majority of the
aggregate
ordinary voting power represented by the issued and outstanding
Equity
Interests in the Borrower, or
(b) occupation of a majority of the seats (other than vacant seats)
on
the
board of directors of Borrower by persons who were not nominated
or
appointed by the board of directors of Borrower or by the Sponsor,
directly
or
indirectly.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or
regulation or
in the interpretation or application thereof by any Governmental
Authority after
the Closing Date or (c) compliance by any Lender or Issuing Bank
(or, for
purposes of Section 2.15(b), by any Lending Office of such Lender
or by such
Lender's or Issuing Bank's holding company, if any) with any
written request,
guideline or directive (whether or not having the force of law) of
any
Governmental Authority made or issued after the Closing Date.
"Charges" shall have the meaning assigned to such term in
Section
10.09.
"Closing Date" shall mean March 31, 2006.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and any other property subject or purported to be
subject from
time to time to a Lien under any Security Document and shall also
include the
Mortgaged Properties provided, however, that, notwithstanding the
foregoing,
Collateral shall not include (i) any outstanding stock of a
Controlled Foreign
Subsidiary entitled to
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<PAGE>
vote in excess of 65% of the total combined voting power of all
classes of stock
of such Controlled Foreign Subsidiary entitled to vote (within the
meaning of
Treasury Regulation Section 1.956-2(c)(2) or any successor
provision thereto),
(ii) any asset of a Controlled Foreign Subsidiary (within the
meaning of
Treasury Regulation Section 1.956-2(c)(2) or any successor
provision thereto) or
any subsidiary of a Controlled Foreign Subsidiary or (iii) United
States Patent
Nos. 6,480,304, 6,496,206, 6,009,442 and 6,262,732. For the
avoidance of doubt,
any stock of another corporation owned by a Controlled Foreign
Subsidiary is an
asset of a Controlled Foreign Subsidiary.
"Collateral Agreement" shall mean the Guarantee and Collateral
Agreement, as amended, supplemented or otherwise modified from time
to time, in
the form of Exhibit D, among the Borrower, each Subsidiary Loan
Party and the
Administrative Agent.
"Collateral and Guarantee Requirement" shall mean the
requirement
that:
(a) on the Closing Date, the Administrative Agent shall have
received
(I)
from the Borrower and each Subsidiary Loan Party, a counterpart of
the
Collateral Agreement
duly executed and delivered on behalf of such person
and
(II) an Acknowledgment and Consent in the form attached to the
Collateral Agreement, executed and delivered by each issuer of
Pledged
Collateral (as defined in the Collateral Agreement), if any, that
is not a
Loan
Party and that is an Affiliate of a Loan Party;
(b) on the Closing Date or as otherwise provided in the
Collateral
Agreement, the Administrative Agent shall have received (I) a
pledge of all
the
issued and outstanding Equity Interests of (A) each Domestic
Subsidiary
owned on the Closing Date directly by or on behalf of Borrower or
any
Subsidiary Loan Party; (II) a pledge of 65% of the outstanding
voting
Equity Interests and 100% of the non-voting Equity Interests of
each "first
tier" Foreign Subsidiary directly owned by Borrower or a Subsidiary
Loan
Party, such pledge to be made pursuant to a Foreign Pledge
Agreement for
each
Foreign Subsidiary that is not an Insignificant Foreign
Subsidiary;
and
(III) all certificates or other instruments (if any) representing
such
Equity Interests, together with stock powers or other instruments
of
transfer with respect thereto endorsed in blank;
(c) on the
Closing Date and at all times thereafter, all Indebtedness
of
Borrower and each Subsidiary that is not a Controlled Foreign
Subsidiary
(other than (i) to the extent that a pledge of such promissory note
or
instrument would violate applicable law or (ii) instruments
evidencing
Indebtedness having an aggregate principal amount of less than
$2.5
million) that is owing to any Loan Party shall be evidenced by a
promissory
note
or an instrument and shall have been pledged pursuant to the
Collateral Agreement, and the Administrative Agent shall have
received all
such
promissory notes or instruments, together with note powers or
other
instruments of transfer with respect thereto endorsed in blank;
(d) in the
case of any person that becomes a Subsidiary Loan Party
after the Closing Date, the Administrative Agent shall have
received a
supplement to the Collateral Agreement, in the form specified
therein, duly
executed and delivered on behalf of such Subsidiary Loan Party
within the
period of time specified in Section 5.10(d);
(e) in the case of any person that becomes a "first tier"
Foreign
Subsidiary directly owned by the Borrower or a Subsidiary Loan
Party after
the
Closing Date, the Administrative Agent shall have received, as
promptly
as
practicable within the period of time specified in Section
5.10(e)
following a request by the Administrative Agent, a pledge of 65% of
the
outstanding voting Equity Interests and 100% of the non-voting
Equity
Interests of such Foreign
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<PAGE>
Subsidiary and, if such Foreign Subsidiary is not an Insignificant
Foreign
Subsidiary, a Foreign Pledge Agreement, duly executed and delivered
on
behalf of such Foreign Subsidiary and the direct parent company of
such
Foreign Subsidiary;
(f) after the Closing Date, all the outstanding Equity Interests
of
(A)
any person that becomes a Subsidiary Loan Party after the Closing
Date
and
(B) subject to Section 5.10(g), all the Equity Interests that
are
acquired by a Loan Party after the Closing Date, shall have been
pledged
pursuant to the Collateral Agreement (provided that in no event
shall more
than
65% of the issued and outstanding voting Equity Interests of
any
"first tier" Foreign Subsidiary directly owned by such Loan Party
be
pledged to secure Obligations of the Borrower, and in no event
shall any of
the
issued and outstanding Equity Interests of any Foreign Subsidiary
that
is
not a "first tier" Foreign Subsidiary be pledged to secure
Obligations
of
the Borrower), and the Administrative Agent shall have received
all
certificates or other instruments (if any) representing such
Equity
Interests, together with stock powers or other instruments of
transfer with
respect thereto endorsed in blank;
(g) except as disclosed on Schedule 3.04 or as otherwise
contemplated
by
any Security Document, all documents and instruments, including
Uniform
Commercial Code financing statements, required by law or
reasonably
requested by the Administrative Agent to be executed, filed,
registered or
recorded to create the Liens intended to be created by the
Security
Documents (in each case, including any supplements thereto) and
perfect
such
Liens to the extent required by, and with the priority required
by,
the
Security Documents, shall have been executed, filed, registered
or
recorded or delivered to the Administrative Agent for filing,
registration
or
the recording concurrently with, or promptly following, the
execution
and
delivery of each such Security Document or a supplement thereto
within
the period of time
specified therein;
(h) in connection with each Mortgage required pursuant to
Section
5.10(c), the Administrative Agent shall receive (i) a policy or
policies or
marked-up unconditional binder of title insurance or foreign
equivalent
thereof, as applicable, paid for by the Borrower, issued by a
nationally
recognized title insurance company insuring the Lien of each
Mortgage to be
entered into as a valid first Lien on the Mortgaged Property
described
therein, free of any other Liens except as permitted by Section
6.02,
together with such endorsements, coinsurance and reinsurance as
the
Administrative Agent may reasonably request, (ii) a survey of any
Mortgaged
Property (and all improvements thereon), or foreign equivalent
thereof, as
applicable, which is (1) dated (or redated) not earlier than six
months
prior to the date of delivery thereof unless there shall have
occurred
within six months prior to such date of delivery any exterior
construction
on
the site of such Mortgaged Property, in which event such survey
shall be
dated (or redated) after the completion of such construction or if
such
construction shall not have been completed as of such date of
delivery, not
earlier than 20 days prior to such date of delivery, (2) certified
by the
surveyor (in a manner reasonably acceptable to the Administrative
Agent) to
the
Administrative Agent and the title insurance company insuring
the
Mortgage, (3) complying in all respects with the minimum detail
requirements of the American Land Title Association as such
requirements
are
in effect on the date of preparation of such survey and (4)
sufficient
for
such title insurance company to remove all standard survey
exceptions
from
the title insurance policy relating to such Mortgaged Property
or
otherwise reasonably acceptable to the Administrative Agent or an
affidavit
of
no change to an existing survey; provided that such title
insurance
company issues the title insurance policy with full survey
coverage,
including all survey-related endorsements; and
(i) except as disclosed on Schedule 3.04 or as otherwise
contemplated
by
any Security Document, each Loan Party shall have obtained all
consents
and
approvals required to
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<PAGE>
be
obtained by it in connection with (i) the execution and delivery of
all
Security Documents (or supplements thereto) to which it is a party
and the
granting by it of the Liens thereunder and (ii) the performance of
its
obligations thereunder.
"Commitment Fee" shall have the meaning assigned to such term
in
Section 2.12(a).
"Commitment Fee Rate" shall mean a rate equal to 0.50% per
annum;
provided that on and after the first Adjustment Date, the
Commitment Fee Rate
will be determined pursuant to the Pricing Grid.
"Commitments" shall mean (a) with respect to any Lender, such
Lender's
Revolving Facility Commitment and Term Loan Commitment and (b) with
respect to
any Swingline Lender, its Swingline Commitment.
"Communications" shall have the meaning assigned to such term
in
Section 9.17(a).
"Conduit Lender" shall mean any special purpose corporation
organized
and administered by any Lender for the purpose of making Loans
otherwise
required to be made by such Lender and designated by such Lender in
a written
instrument; provided that the designation by any Lender of a
Conduit Lender
shall not relieve the designating Lender of any of its obligations
to fund a
Loan under this Agreement if, for any reason, its Conduit Lender
fails to fund
any such Loan, and the designating Lender (and not the Conduit
Lender) shall
have the sole right and responsibility to deliver all consents and
waivers
required or requested under this Agreement with respect to its
Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled
to receive
any greater amount pursuant to Section 2.15, 2.16, 2.17 or 9.05
than the
designating Lender would have been entitled to receive in respect
of the
extensions of credit made by such Conduit Lender or (b) be deemed
to have any
Commitment.
"Consolidated Debt" at any date shall mean the sum of (without
duplication) all Indebtedness within the meaning of clause (a),
(b), (d), (e)
(to the extent, in the case of clause (e), any payments are
actually made in
respect of such Guarantees) or (f) of the definition of
"Indebtedness" (other
than letters of credit to the extent undrawn).
"Consolidated Leverage Ratio" shall mean, on any date, the ratio
of
(a) Consolidated Debt as of such date to (b) EBITDA for the period
of four
consecutive fiscal quarters of the Borrower most recently ended as
of such date,
all determined on a consolidated basis in accordance with GAAP;
provided that
EBITDA shall be determined for the relevant Test Period on a Pro
Forma Basis;
provided, further, that if the last paragraph of the definition of
EBITDA is
applicable for any period for which EBITDA is to be used to
calculate
Consolidated Leverage Ratio, EBITDA shall only be determined on a
Pro Forma
Basis for any events specified in the definition of Pro Forma Basis
if such
events occur following the Closing Date.
"Consolidated Net Income" shall mean, with respect to any person
for
any period, the aggregate of the Net Income of such person and its
subsidiaries
for such period, on a consolidated basis; provided, however, that,
without
duplication,
(i) any net after-tax (A) extraordinary, (B) nonrecurring or
(C)
unusual gains or losses or income or expenses (less all fees and
expenses
relating thereto) including, without limitation, any severance
expenses,
litigation expenses, and fees, expenses or charges related to any
offering
of
Equity Interests of Borrower, any Investment, acquisition
permitted
hereunder or Indebtedness permitted to be incurred hereunder (in
each case,
whether or not successful), including any such fees, expenses,
charges or
change in control payments related to the
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<PAGE>
Transactions, in each case, shall be excluded, provided, however,
that the
Borrower shall deliver to the Administrative Agent a certificate of
a
Financial Officer of the Borrower setting forth such extraordinary
or
nonrecurring gains or losses or income or expenses and
calculations
supporting them in reasonable detail,
(ii) any net after-tax income or loss from discontinued operations
and
any
net after-tax gain or loss on disposal of discontinued operations
shall
be
excluded,
(iii) any net after-tax gain or loss (less all fees and expenses
or
charges relating thereto) attributable to business dispositions or
asset
dispositions other than in the ordinary course of business (as
determined
in
good faith by the board of directors of the Borrower) shall be
excluded,
(iv) any net after-tax income or loss (less all fees and expenses
or
charges relating thereto) attributable to the early extinguishment
of
indebtedness shall be excluded,
(v) Consolidated Net Income for such period shall not include
the
cumulative effect of a change in accounting principles during such
period,
(vi) any increase in amortization or depreciation or any
one-time
non-cash charges resulting from purchase accounting in connection
with the
Transactions or any acquisition permitted hereunder that is
consummated
after the Closing Date shall be excluded,
(vii) any non-cash impairment charges resulting from the
application
of
Statement of Financial Accounting Standards No. 142 and 144, and
the
amortization of intangibles arising pursuant to No. 141, shall be
excluded,
(viii) any currency translation gains and losses related to
currency
remeasurements of Indebtedness (including the net loss or gain
resulting
from
Swap Agreements for currency exchange risk) shall be excluded,
(ix) any adjustments resulting from the application of Statement
of
Financial Accounting Standards No. 133 shall be excluded,
(x) any non-cash compensation expenses realized from grants of
stock
appreciation or similar rights, stock options or other rights to
officers,
directors and employees of such person or any of its subsidiaries
shall be
excluded, and
(xi) accruals and reserves that are established within twelve
months
after the Closing Date and that are so required to be established
in
accordance with GAAP shall be excluded.
"Consolidated Total Assets" shall mean, as of any date, the
total
assets of the Borrower and its consolidated Subsidiaries,
determined in
accordance with GAAP, as set forth on the consolidated balance
sheet of the
Borrower as of such date.
"Control" shall mean the possession, directly or indirectly, of
the
power to direct or cause the direction of the management or
policies of a
person, whether through the ownership of voting securities, by
contract or
otherwise, and "Controlling" and "Controlled" shall have meanings
correlative
thereto.
"Controlled Foreign Subsidiary" means a Foreign Subsidiary that is
a
"controlled foreign corporation" as defined in Section 957(a) of
the Code.
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<PAGE>
"Credit Event" shall have the meaning assigned to such term in
Article
IV.
"Cumulative Retained Excess Cash Flow Amount" shall mean, at any
date,
an amount, not less than zero in the aggregate, determined on a
cumulative basis
equal to the amount of Excess Cash Flow for all Excess Cash Flow
Periods ending
after the Closing Date that is not (and, in the case of any Excess
Cash Flow
Period for which the required date of prepayment has not yet
occurred pursuant
to Section 2.11(c), will not on such date of required prepayment
be) required to
be applied in accordance with Section 2.11(c).
"Cure Amount" shall have the meaning assigned to such term in
Section
7.03(a).
"Cure Right" shall have the meaning assigned to such term in
Section
7.03(a).
"Current Assets" shall mean, with respect to the Borrower and
its
Subsidiaries on a consolidated basis at any date of determination,
the sum of
all assets (other than cash and Permitted Investments or other cash
equivalents)
that would, in accordance with GAAP, be classified on a
consolidated balance
sheet of the Borrower and its Subsidiaries as current assets at
such date of
determination, other than amounts related to current or deferred
Taxes based on
income or profits.
"Current Liabilities" shall mean, with respect to the Borrower and
its
Subsidiaries on a consolidated basis at any date of determination,
all
liabilities that would, in accordance with GAAP, be classified on a
consolidated
balance sheet of the Borrower and its Subsidiaries as current
liabilities at
such date of determination, other than (a) the current portion of
any
Indebtedness, (b) accruals of Interest Expense (excluding Interest
Expense that
is due and unpaid), (c) accruals for current or deferred Taxes
based on income
or profits, (d) accruals, if any, of transaction costs resulting
from the
Transactions, and (e) accruals of any costs or expenses related to
(i) severance
or termination of employees prior to the Closing Date or (ii)
bonuses, pension
and other post-retirement benefit obligations, and (f) accruals for
add-backs to
EBITDA included in clauses (a)(iv) through (a)(vi) of the
definition of such
term.
"Debt Service" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any period, Cash Interest
Expense for
such period plus scheduled principal amortization of Consolidated
Debt for such
period.
"Default" shall mean any event or condition that upon notice, lapse
of
time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which
a
Lender Default is in effect.
"Dictaphone" means Dictaphone Corporation, a Delaware
corporation.
"Documentation Agent" shall have the meaning assigned to such term
in
the introductory paragraph of this Agreement.
"Dollar Equivalent" shall mean, as to any amount denominated in
an
Alternate Currency as of any date of determination, the amount of
dollars that
would be required to purchase the amount of such Alternate Currency
based upon
the spot selling rate at which the Administrative Agent offers to
sell such
Alternate Currency for dollars in the London foreign exchange
market at
approximately 11:00 a.m. London time on such date for delivery two
(2) Business
Days later.
"Dollars" or "$" shall mean lawful money of the United States
of
America.
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<PAGE>
"Domestic Subsidiary" shall mean any Subsidiary that is not a
Foreign
Subsidiary.
"EBITDA" shall mean, with respect to Borrower and its Subsidiaries
on
a consolidated basis for any period, the Consolidated Net Income of
Borrower and
its Subsidiaries for such period plus (a) the sum of (in each case
without
duplication and to the extent the respective amounts described in
subclauses (i)
through (viii) of this clause (a) reduced such Consolidated Net
Income for the
respective period for which EBITDA is being determined):
(i) provision for Taxes based on income, profits or capital of
the
Borrower and its Subsidiaries for such period, including,
without
limitation, state, franchise and similar taxes and foreign
withholding
taxes paid or accrued during such period,
(ii) Interest Expense of the Borrower and its Subsidiaries for
such
period (net of interest income of the Borrower and its Subsidiaries
for
such
period),
(iii) depreciation and amortization expenses of the Borrower and
its
Subsidiaries for such period,
(iv) restructuring charges; provided, that with respect to each
restructuring charge, the Borrower shall have delivered to the
Administrative Agent an officers' certificate specifying and
quantifying
such
charge and stating that such charge is a restructuring charge,
(v) any other non-cash charges; provided that, for purposes of
this
subclause (v) of this clause (a), any non-cash charges or losses
shall be
treated as cash charges or losses in any subsequent period during
which
cash
disbursements attributable thereto are made,
(vi) any expenses incurred by the Borrower in such period
attributable
to
the Borrower's compliance with requirements under the
Sarbanes-Oxley Act
of
2002, not to exceed $3 million per annum, and
(vii) any expenses and charges incurred by the Borrower in such
period
relating to the SEC inquiry with respect to events relating to
SpeechWorks
International, Inc. prior to the Borrower's acquisition thereof,
not to
exceed $0.5 million per annum,
minus (b) the sum of (without duplication and to the extent the
amounts
described in this clause (b) increased such Consolidated Net Income
for the
respective period for which EBITDA is being determined) non-cash
charges
increasing Consolidated Net Income of the Borrower and its
Subsidiaries for such
period (but excluding any such charges (i) in respect of which cash
was received
in a prior period or will be received in a future period or (ii)
which represent
the reversal of any accrual of, or cash reserve for, anticipated
cash charges in
any prior period).
For purposes of this Agreement, EBITDA for the quarter ended (i)
June
30, 2005 shall be deemed to be $26.6 million, (ii) September 30,
2005 shall be
deemed to be $24.5 million and (iii) December 31, 2005 shall be
deemed to be
$30.2 million, each of which reflects adjustments used in
connection with the
calculation of "Pro Forma EBITDA" as set forth on Schedule
1.01(a).
"Embargoed Person" shall have the meaning assigned to such term
in
Section 6.09.
"Environment" shall mean ambient and indoor air, surface water
and
groundwater (including potable water, navigable water and
wetlands), the land
surface or subsurface strata, natural resources such as flora and
fauna or as
otherwise defined in any Environmental Law.
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<PAGE>
"Environmental Laws" shall mean all applicable laws (including
common
law), rules, regulations, codes, ordinances, orders, decrees or
judgments,
promulgated or entered into by any Governmental Authority, relating
to
preservation or protection of the environment, preservation or
reclamation of
natural resources, the generation, management, Release or
threatened Release of,
or exposure to, any Hazardous Material or to occupational health
and safety
matters (to the extent relating to exposure to Hazardous
Materials).
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or
other
equivalents of or interests in (however designated) equity of such
person,
including any preferred stock, any limited or general partnership
interest and
any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the Borrower or a Subsidiary, is
treated as a
single employer under Section 414(b) or (c) of the Code, or, solely
for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as
a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any Reportable Event; (b) the
existence
with respect to any Plan of an "accumulated funding deficiency" (as
defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an
application for a waiver of the minimum funding standard with
respect to any
Plan, the failure to make by its due date a required installment
under Section
412(m) of the Code with respect to any Plan or the failure to make
any required
contribution to a Multiemployer Plan; (d) the incurrence by the
Borrower, a
Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA with
respect to the termination of any Plan; (e) the receipt by the
Borrower, a
Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any
notice relating to an intention to terminate any Plan or to appoint
a trustee to
administer any Plan under Section 4042 of ERISA; (f) the incurrence
by the
Borrower, a Subsidiary or any ERISA Affiliate of any liability with
respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g)
the receipt by the Borrower, a Subsidiary or any ERISA Affiliate of
any notice,
or the receipt by any Multiemployer Plan from the Borrower, a
Subsidiary or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to
be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"euro" or "E" shall mean the single currency of the
Participating
Member States.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Term Loan or
Eurocurrency Revolving Loan.
"Eurocurrency Revolving Borrowing" shall mean a Borrowing comprised
of
Eurocurrency Revolving Loans.
"Eurocurrency Revolving Loan" shall mean any Revolving Facility
Loan
bearing interest at a rate determined by reference to the Adjusted
LIBO Rate in
accordance with the provisions of Article II.
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<PAGE>
"Eurocurrency Term Loan" shall mean any Term Loan bearing interest
at
a rate determined by reference to the Adjusted LIBO Rate in
accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term
in
Section 7.01.
"Excess Cash Flow" shall mean, with respect to the Borrower and
its
Subsidiaries on a consolidated basis for any Excess Cash Flow
Period, EBITDA of
the Borrower and its Subsidiaries on a consolidated basis for such
Excess Cash
Flow Period, minus, without duplication,
(a) Debt Service for such Excess Cash Flow Period,
(b) (i) Capital Expenditures by the Borrower and its Subsidiaries
on a
consolidated basis during such Excess Cash Flow Period that are
paid in
cash
to the extent permitted hereunder and (ii) the aggregate
consideration
paid
in cash during the Excess Cash Flow period in respect of
Permitted
Business Acquisitions and other Investments permitted hereunder to
the
extent not financed with the proceeds of Indebtedness other than
Loans
(less any amounts received in respect thereof as a return of
capital),
(c) Capital Expenditures that the Borrower or any Subsidiary
shall,
during such Excess Cash Flow Period, become obligated to make but
that are
not
made during such Excess Cash Flow Period; provided that the
Borrower
shall deliver a certificate to the Administrative Agent not later
than 90
days after the end of
such Excess Cash Flow Period, signed by a Responsible
Officer of the Borrower and certifying that such Capital
Expenditures and
the
delivery of the related equipment will be made in the following
Excess
Cash
Flow Period,
(d) Taxes paid in cash by the Borrower and its Subsidiaries on
a
consolidated basis during such Excess Cash Flow Period or that will
be paid
within six months after the close of such Excess Cash Flow Period
(provided
that
any amount so deducted that will be paid after the close of
such
Excess Cash Flow Period shall not be deducted again in a subsequent
Excess
Cash
Flow Period) and for which reserves have been established,
including
income tax expense and withholding tax expense incurred in
connection with
cross-border transactions involving the Foreign Subsidiaries,
(e) an amount equal to any increase in Working Capital for such
Excess
Cash
Flow Period,
(f) cash expenditures made in respect of Swap Agreements during
such
Excess Cash Flow Period, to the extent not deducted in the
computation of
EBITDA or Interest Expense during such Excess Cash Flow Period,
(g) Investments and acquisitions permitted hereunder made pursuant
to
Sections 6.04 and 6.05 during such Excess Cash Flow Period,
(h) dividends or distributions or repurchases of Equity Interests
made
pursuant to Section 6.06 (other than Section 6.06(c)(ii)) during
such
Excess Cash Flow Period,
(i) amounts paid in cash during such Excess Cash Flow Period on
account of (x) items that were accounted for as noncash reductions
of Net
Income in determining Consolidated Net Income or as noncash
reductions of
Consolidated Net Income in determining EBITDA of the Borrower and
its
Subsidiaries in a prior Excess Cash Flow Period and (y) reserves
or
accruals established in purchase accounting,
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(j) to the extent not deducted in the computation of Net Proceeds
in
respect of any asset disposition or condemnation giving rise
thereto, the
amount of any mandatory prepayment of Indebtedness (other than
Indebtedness
created hereunder or under any other Loan Document), together with
any
interest, premium or penalties required to be paid (and actually
paid) in
connection therewith, and
(k) the amount related to items that were added to or not
deducted
from
Net Income in calculating Consolidated Net Income or were added to
or
not
deducted from Consolidated Net Income in calculating EBITDA to
the
extent such items represented a cash payment (which had not reduced
Excess
Cash
Flow upon the accrual thereof in a prior Excess Cash Flow Period),
or
an
accrual for a cash payment, by the Borrower and its Subsidiaries or
did
not
represent cash received by the Borrower and its Subsidiaries, in
each
case
on a consolidated basis during such Excess Cash Flow Period,
plus, without duplication,
(1) an amount equal to any decrease in Working Capital for such
Excess
Cash
Flow Period,
(2) all proceeds received during such Excess Cash Flow Period
of
Capital Lease Obligations, purchase money Indebtedness, Sale and
Lease-Back
Transactions and any other Indebtedness, in each case to the extent
used to
finance any Capital Expenditure (other than Indebtedness under
this
Agreement to the extent there is no corresponding deduction to
Excess Cash
Flow
above in respect of the use of such Borrowings),
(3) all amounts referred to in clause (b) above to the extent
funded
with
the proceeds of the issuance of Equity Interests of, or capital
contributions to, the Borrower after the Closing Date (to the
extent not
previously used to prepay Indebtedness (other than Revolving
Facility Loans
or
Swingline Loans), make any investment or capital expenditure or
otherwise for any purpose resulting in a deduction to Excess Cash
Flow in
any
prior Excess Cash Flow Period) or any amount that would have
constituted Net Proceeds under clause (a) of the definition of the
term
"Net
Proceeds" if not so spent, in each case to the extent there is
a
corresponding
deduction from Excess Cash Flow above,
(4) to the extent any permitted Capital Expenditures referred to
in
clause (c) above and the delivery of the related equipment do not
occur in
the
following Excess Cash Flow Period of the Borrower specified in
the
certificate of the Borrower provided pursuant to clause (c) above,
the
amount of such Capital Expenditures that were not so made in such
following
Excess Cash Flow Period,
(5) cash payments received in respect of Swap Agreements during
such
Excess Cash Flow Period to the extent (i) not included in the
computation
of
EBITDA or (ii) such payments do not reduce Cash Interest
Expense,
(6) any extraordinary or nonrecurring gain realized in cash
during
such
Excess Cash Flow Period (except to the extent such gain consists
of
Net
Proceeds subject to Section 2.11(b)),
(7) to the extent deducted in the computation of EBITDA, cash
interest
income, and
(8) the amount related to items that were deducted from or not
added
to
Net Income in connection with calculating Consolidated Net Income
or
were
deducted from or not added to
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Consolidated Net Income in calculating EBITDA to the extent either
(x) such
items represented cash received by the Borrower or any Subsidiary
or (y)
such
items do not represent cash paid by the Borrower or any Subsidiary,
in
each
case on a consolidated basis during such Excess Cash Flow
Period.
"Excess Cash Flow Period" shall mean each fiscal year of the
Borrower
commencing with the 2007 fiscal year.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Indebtedness" shall mean all Indebtedness permitted to
be
incurred under Section 6.01.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent,
any Lender, any Issuing Bank or any other recipient of any payment
to be made by
or on account of any obligation of the Borrower hereunder, (a)
taxes imposed on
(or measured by) its net income, however denominated, (or franchise
taxes or
minimum Taxes imposed in lieu of net income taxes) by a
jurisdiction as a result
of the Administrative Agent, such Lender, such Issuing Bank or such
other
recipient being organized or having its principal office in or, in
the case of
any Lender, having its applicable Lending Office in such
jurisdiction or
otherwise imposed as a result of a connection between the
Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment
to be made by
or on account of any obligation of the Borrower hereunder, as
applicable, and
the jurisdiction of the Governmental Authority imposing such tax or
any
political subdivision or taxing authority thereof or therein (other
than any
such connection arising from such Administrative Agent, Lender,
Issuing Bank or
other such recipient of payment having executed, delivered or
performed its
obligations or received a payment under, or enforced, or otherwise
with respect
to, this Agreement), (b) any branch profits tax or any similar tax
that is
imposed by any jurisdiction described in clause (a) above and (c)
in the case of
a Lender (other than a Lender who became a Lender pursuant to a
request by a
Borrower pursuant to Section 2.19(b)), any United States federal
withholding tax
that (x) is in effect and would apply to amounts payable hereunder
to such
Lender at the time such Lender becomes a party to such Loan to the
Borrower (or
designates a new Lending Office) except to the extent that such
Lender (or its
assignor, if any) was entitled, immediately prior to the time of
designation of
a new Lending Office (or assignment), to receive additional amounts
from a Loan
Party with respect to any withholding tax pursuant to Section
2.17(a) or Section
2.17(c) or (y) is attributable to such Lender's failure to comply
with Section
2.17(e) or (f) with respect to such Loan.
"Executive Order" shall have the meaning assigned to such term
in
Section 3.22(a).
"Facility" shall mean the applicable facility and commitments
utilized
in making Loans and credit extensions hereunder, it being
understood that as of
the Closing Date there are two Facilities, i.e., the Term Facility
and the
Revolving Facility.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of
the rates on
overnight Federal funds transactions with members of the Federal
Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so
published for any day which is a Business Day, the average (rounded
upward, if
necessary, to the next 1/100 of 1%) of the quotations for the day
of such
transactions received by the Administrative Agent from three
Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean that certain Fee Letter dated February 7,
2006
by and among the Borrower, the Agents and the Joint Lead
Arrangers.
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<PAGE>
"Fees" shall mean the Commitment Fees, the L/C Participation Fees,
the
Issuing Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any person shall mean the Chief
Financial
Officer, principal accounting officer, Treasurer, Assistant
Treasurer or
Controller of such person.
"Financial Performance Covenants" shall mean the covenants of
the
Borrower set forth in Sections 6.11 and 6.12.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than the United States of America. For
purposes of
this definition, the United States of America, each State thereof
and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Plan" shall mean any employee benefit plan, program,
policy,
arrangement or agreement maintained or contributed to by, or
entered into with,
the Borrower or any Subsidiary with respect to employees employed
outside the
United States, which provides, or results in, retirement income, a
deferral of
income in contemplation of retirement, and which is not subject to
ERISA or the
Code.
"Foreign Pledge Agreement" shall mean a pledge agreement with
respect
to the Pledged Collateral that constitutes Equity Interests of a
"first tier"
Foreign Subsidiary, in form and substance reasonably satisfactory
to the
Administrative Agent and accompanied by an opinion of counsel in
such relevant
jurisdiction as to the perfection of the Administrative Agent's
security
interest in such Equity Interests; provided that in no event shall
more than 65%
of the issued and outstanding voting Equity Interests of such
Foreign Subsidiary
be pledged to secure Obligations of the Borrower.
"Foreign Subsidiary" shall mean any Subsidiary that is incorporated
or
organized under the laws of any jurisdiction other than the United
States of
America, any State thereof or the District of Columbia.
"GAAP" shall mean generally accepted accounting principles in
effect
from time to time in the United States, applied on a consistent
basis, subject
to the provisions of Section 1.02.
"Governmental Authority" shall mean any federal, state, local
or
foreign court or governmental agency, authority, instrumentality or
regulatory
or legislative body.
"Guarantee" of or by any person (the "guarantor") shall mean (a)
any
obligation, contingent or otherwise, of the guarantor guaranteeing
or having the
economic effect of guaranteeing any Indebtedness or other
obligation of any
other person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of the guarantor, direct
or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase
or payment
of) such Indebtedness or other obligation (whether arising by
virtue of
partnership arrangements, by agreement to keep well, to purchase
assets, goods,
securities or services, to take-or-pay or otherwise) or to purchase
(or to
advance or supply funds for the purchase of) any security for the
payment of
such Indebtedness or other obligation, (ii) to purchase or lease
property,
securities or services for the purpose of assuring the owner of
such
Indebtedness or other obligation of the payment thereof, (iii) to
maintain
working capital, equity capital or any other financial statement
condition or
liquidity of the primary obligor so as to enable the primary
obligor to pay such
Indebtedness or other obligation, (iv) entered into for the purpose
of assuring
in any other manner the holders of such Indebtedness or other
obligation of the
payment thereof or to protect such holders against loss in respect
thereof (in
whole or in part) or (v) as an account party in respect of any
letter of credit
or letter of guaranty issued to support such Indebtedness or other
obligation,
or (b) any Lien on any assets of the guarantor securing any
Indebtedness (or any
existing right, contingent or otherwise, of the
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holder of Indebtedness to be secured by such a Lien) of any other
person,
whether or not such Indebtedness or other obligation is assumed by
the
guarantor; provided, however, that the term "Guarantee" shall not
include
endorsements for collection or deposit, in either case in the
ordinary course of
business, or customary and reasonable indemnity obligations in
effect on the
Closing Date or entered into in connection with any acquisition or
disposition
of assets permitted under this Agreement.
"guarantor" shall have the meaning assigned to such term in the
definition of the term "Guarantee."
"Hazardous Materials" shall mean all pollutants, contaminants,
wastes,
chemicals, materials, substances and constituents of any nature
which are
subject to regulation or which would reasonably be likely to give
rise to
liability under applicable Environmental Law, including, without
limitation,
explosive or radioactive substances or petroleum or petroleum
distillates,
asbestos or asbestos-containing materials, polychlorinated
biphenyls or radon
gas.
"Incremental Extensions of Credit" shall have the meaning assigned
to
such term in Section 2.21.
"Incremental Facility Amendment" shall have the meaning assigned
to
such term in Section 2.21.
"Incremental Facility Closing Date" shall have the meaning assigned
to
such term in Section 2.21.
"Incremental Revolving Commitments" shall have the meaning assigned
to
such term in Section 2.21.
"Incremental Term Loans" shall have the meaning assigned to such
term
in Section 2.21.
"Indebtedness" of any person shall mean, without duplication, (a)
all
obligations of such person for borrowed money, (b) all obligations
of such
person evidenced by bonds, debentures, notes or similar instruments
to the
extent the same would appear as a liability on a balance sheet
prepared in
accordance with GAAP, (c) all obligations of such person under
conditional sale
or other title retention agreements relating to property or assets
purchased by
such person, (d) all obligations of such person issued or assumed
as the
deferred purchase price of property or services (other than current
trade
liabilities and current intercompany liabilities (but not any
refinancings,
extensions, renewals or replacements thereof) incurred in the
ordinary course of
business and maturing within 365 days after the incurrence
thereof), to the
extent that the same would be required to be shown as a long term
liability on a
balance sheet prepared in accordance with GAAP, (e) all Guarantees
by such
person of Indebtedness of others, (f) all Capital Lease Obligations
of such
person, (g) all payments that such person would have to make in the
event of an
early termination, on the date Indebtedness of such person is being
determined,
in respect of outstanding Swap Agreements, (h) the principal
component of all
obligations, contingent or otherwise, of such person as an account
party in
respect of letters of credit and (i) the principal component of all
obligations
of such person in respect of bankers' acceptances. The Indebtedness
of any
person shall include the Indebtedness of any partnership in which
such person is
a general partner, other than to the extent that the instrument or
agreement
evidencing such Indebtedness expressly limits the liability of such
person in
respect thereof.
"Indemnified Taxes" shall mean all Taxes other than Excluded Taxes
and
Other Taxes.
"Indemnitee" shall have the meaning assigned to such term in
Section
9.05(b).
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<PAGE>
"Information" shall have the meaning assigned to such term in
Section
3.14(a).
"Information Memorandum" shall mean the Confidential
Information
Memorandum dated March 2006, as modified or supplemented prior to
the Closing
Date.
"Insignificant Foreign Subsidiary" shall mean a Foreign
Subsidiary
with (1) net sales that are less than 3.0% of the consolidated net
sales of the
Borrower and the Subsidiaries for the most recent fiscal quarter
for which a
consolidated income statement of the Borrower is available and (2)
assets that
are less than 3.0% of Total Assets as of the end of the most recent
fiscal
quarter for which a consolidated balance sheet of the Borrower and
the
Subsidiaries is available.
"Intellectual Property" shall have the meaning assigned to such
term
in Section 3.24(a).
"Interest Coverage Ratio" shall have the meaning assigned to such
term
in Section 6.11.
"Interest Election Request" shall mean a request by the Borrower
to
convert or continue a Term Borrowing or Revolving Borrowing in
accordance with
Section 2.07.
"Interest Expense" shall mean, with respect to any person for
any
period, the sum of (a) gross interest expense of such person for
such period on
a consolidated basis, including (i) the amortization of debt
discounts, (ii) the
amortization of all fees (including fees with respect to Swap
Agreements)
payable in connection with the incurrence of Indebtedness to the
extent included
in interest expense and (iii) the portion of any payments or
accruals with
respect to Capital Lease Obligations allocable to interest expense
and (b)
capitalized interest of such person. For purposes of the foregoing,
gross
interest expense shall be determined after giving effect to any net
payments
made or received and costs incurred by the Borrower and its
Subsidiaries with
respect to Swap Agreements.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable
to the
Borrowing of which such Loan is a part and, in the case of a
Eurocurrency
Borrowing with an Interest Period of more than three months'
duration, each day
that would have been an Interest Payment Date had successive
Interest Periods of
three months' duration been applicable to such Borrowing and, in
addition, the
date of any refinancing or conversion of such Borrowing with or to
a Borrowing
of a different Type, (b) with respect to any ABR Loan, the last
Business Day of
each calendar quarter and (c) with respect to any Swingline Loan,
the day that
such Swingline Loan is required to be repaid pursuant to Section
2.09(a).
"Interest Period" shall mean, as to any Eurocurrency Borrowing,
the
period commencing on the date of such Borrowing or on the last day
of the
immediately preceding Interest Period applicable to such Borrowing,
as
applicable, and ending on the numerically corresponding day (or, if
there is no
numerically corresponding day, on the last day) in the calendar
month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of
the relevant
Borrowing, available to all relevant Lenders), as the Borrower may
elect, or the
date any Eurocurrency Borrowing is converted to an ABR Borrowing in
accordance
with Section 2.07 or repaid or prepaid in accordance with Section
2.09, 2.10 or
2.11; provided, unless the Administrative Agent shall otherwise
agree, that with
respect to periods commencing prior to the 31st day after the
Closing Date, the
Borrower shall only be permitted to request Interest Periods of one
month;
provided, however, that if any Interest Period would end on a day
other than a
Business Day, such Interest Period shall be extended to the next
succeeding
Business Day unless such next succeeding Business Day would fall in
the next
calendar month, in which case such Interest Period shall end on the
next
preceding Business Day. Interest shall accrue from and including
the first day
of an Interest Period to but excluding the last day of such
Interest Period.
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"Investment" shall have the meaning assigned to such term in
Section
6.04.
"Issuing Bank" shall mean UBS AG, Stamford Branch, solely for
the
purposes of the E194,847.92 Letter of Credit to be issued for the
benefit of the
Borrower by its Milan branch, Bank of America, N.A., and each other
Issuing Bank
designated pursuant to Section 2.05(k), in each case in its
capacity as an
issuer of Letters of Credit hereunder, and its successors in such
capacity as
provided in Section 2.05(i) and, solely with respect to an Existing
Letter of
Credit (and any amendment, renewal or extension thereof in
accordance with this
Agreement), the Lender that issued such Existing Letter of Credit.
An Issuing
Bank may, in its discretion, arrange for one or more Letters of
Credit to be
issued by Affiliates of such Issuing Bank, in which case the term
"Issuing Bank"
shall include any such Affiliate with respect to Letters of Credit
issued by
such Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term
in
Section 2.12(b).
"Joint Lead Arrangers" shall have the meaning assigned to such term
in
the introductory paragraph of this Agreement.
"Judgment Currency" shall have the meaning assigned to such term
in
Section 9.21(a).
"Judgment Currency Conversion Date" shall have the meaning assigned
to
such term in Section 9.21(a).
"L/C Commitment" shall mean the commitment of each Issuing Bank
to
issue Letters of Credit pursuant to Section 2.05. The aggregate
amount of the
L/C Commitment shall initially be $50.0 million, but shall in no
event exceed
the Revolving Commitment.
"L/C Disbursement" shall mean a payment or disbursement made by
an
Issuing Bank pursuant to a Letter of Credit.
"L/C Participation Fee" shall have the meaning assigned such term
in
Section 2.12(b).
"Lender" shall mean each financial institution listed on
Schedule
2.01, as well as any person that becomes a "Lender" hereunder
pursuant to
Section 10.04.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available when required hereunder
its portion of
any Borrowing, to acquire participations in a Swingline Loan
pursuant to Section
2.04 or to fund its portion of any unreimbursed payment under
Section 2.05(e),
or (ii) a Lender having notified in writing the Borrower and/or
the
Administrative Agent that it does not intend to comply with its
obligations
under Section 2.04, 2.05 or 2.06.
"Lending Office" shall mean, as to any Lender, the applicable
branch,
office or Affiliate of such Lender designated by such Lender to
make Loans.
"Letter of Credit" shall mean any letter of credit (including
each
Existing Letter of Credit and Alternate Currency Letters of Credit)
issued
pursuant to Section 2.05.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for
any Interest Period, the rate per annum determined by the
Administrative Agent
at approximately 11:00 a.m., London time, on the Quotation Day for
such Interest
Period by reference to the British Bankers' Association Interest
Settlement
Rates for deposits in the currency of such Borrowing (as reflected
on the
applicable Telerate screen page), for a period equal to such
Interest Period;
provided that, to the extent that an interest
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rate is not ascertainable pursuant to the foregoing provisions of
this
definition, the "LIBO Rate" shall be the average (rounded upward,
if necessary,
to the next 1/100 of 1%) of the respective interest rates per annum
at which
deposits in the currency of such Borrowing are offered for such
Interest Period
to major banks in the London interbank market by the principal
London office of
the bank serving as the Administrative Agent at approximately 11:00
a.m., London
time, on the Quotation Day for such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed
of trust, lien, hypothecation, pledge, encumbrance, charge or
security interest
in or on such asset, (b) the interest of a vendor or a lessor under
any
conditional sale agreement, capital lease or title retention
agreement (or any
financing lease having substantially the same economic effect as
any of the
foregoing) relating to such asset and (c) in the case of securities
(other than
securities representing an interest in a joint venture that is not
a
Subsidiary), any purchase option, call or similar right of a third
party with
respect to such securities to the extent that any such right is
intended to have
an effect equivalent to that of a security interest in such
securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the
Security Documents and any Note issued under Section 2.09(e), any
Incremental
Facility Amendment, and solely for the purposes of Sections 4.02(m)
and 7.01(c)
hereof, the Fee Letter.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean the Term Loans, the Revolving Facility Loans,
the
Swingline Loans and loans in respect of Incremental Extensions of
Credit.
"Local Time" shall mean New York City time.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on
the
business, property, operations or condition of the Borrower and
its
Subsidiaries, taken as a whole.
"Material Indebtedness" shall mean Indebtedness (other than Loans
and
Letters of Credit) of any one or more of the Borrower or any
Subsidiary in an
aggregate principal amount exceeding $15 million.
"Maximum Rate" shall have the meaning assigned to such term in
Section
9.09.
"Merger Sub" shall mean Phoenix Merger Sub, Inc.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgaged Properties" shall mean each real property encumbered by
a
Mortgage pursuant to Section 5.10.
"Mortgages" shall mean the mortgages, deeds of trust or deeds
to
secure debt delivered pursuant to Section 5.10, as amended,
supplemented or
otherwise modified from time to time, with respect to Mortgaged
Properties.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA to which the Borrower or any Subsidiary
or any ERISA
Affiliate (other than one considered an ERISA Affiliate only
pursuant to
subsection (m) or (o) of Code Section 414) is making or accruing
an
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obligation to make contributions, or has within any of the
preceding six plan
years made or accrued an obligation to make contributions.
"Net Income" shall mean, with respect to any person, the net
income
(loss) of such person, determined in accordance with GAAP and
before any
reduction in respect of preferred stock dividends.
"Net Proceeds" shall mean:
(a) 100% of the cash proceeds actually received by the Borrower or
any
Subsidiary of the Borrower (including any cash payments received by
way of
deferred payment of principal pursuant to a note or installment
receivable
or
purchase price adjustment receivable or otherwise and including
casualty
insurance settlements and condemnation awards, but only as and
when
received) from any loss, damage, destruction or condemnation of, or
any
sale, transfer or other disposition (including any sale and
leaseback of
assets and any mortgage or lease of real property) to any person
of, any
asset or assets of the Borrower or any Subsidiary of the Borrower
(other
than
those pursuant to Section 6.05(a), (b), (c), (e), (f), (h) or
(k)),
net
of (i) attorneys' fees, accountants' fees, investment banking
fees,
survey costs, title insurance premiums, and related search and
recording
charges, transfer taxes, deed or mortgage recording taxes, required
debt
payments and required payments of other obligations relating to
the
applicable asset (other than pursuant hereto or pursuant to
Permitted
Junior Debt or any Permitted Refinancing Indebtedness in respect
thereto),
other customary expenses and brokerage, consultant and other
customary fees
actually incurred in connection therewith and (ii) Taxes paid or
payable as
a
result thereof; provided that if no Event of Default exists and
the
Borrower shall deliver a certificate of a Responsible Officer of
the
Borrower to the Administrative Agent promptly following receipt of
any such
proceeds setting forth the Borrower's intention to use any portion
of such
proceeds to acquire, maintain, develop, construct, improve, upgrade
or
repair assets useful in the business of the Borrower and its
Subsidiaries
or
to make investments in Permitted Business Acquisitions, in each
case
within 12 months of such receipt, such portion of such proceeds
shall not
constitute Net Proceeds except to the extent not so used or not
contractually committed to be so used within such 12-month period
(it being
understood that if any portion of such proceeds are not so used
within such
12-month period because such amount is contractually committed to
be used
and
subsequent to such date such contract is terminated or expires
without
such
portion being so used or, in any event, if such proceeds are not
used
within 180 days of such commitment (in the case of proceeds from
any
consensual sale, transfer or disposition) or one year of such
commitment
(in
any other case), such remaining portion shall constitute Net
Proceeds
as of the date of such
termination or expiration without giving effect to
this
proviso), and provided, further, that (x) no proceeds realized in
a
single transaction or series of related transactions shall
constitute Net
Proceeds unless such proceeds shall exceed $5 million and (y) no
proceeds
shall constitute Net Proceeds in any fiscal year until the
aggregate amount
of
all such proceeds in such fiscal year shall exceed $10 million,
and
(b) 100% of the cash proceeds from the incurrence, issuance or sale
by
the
Borrower or any Subsidiary of any Indebtedness (other than
Excluded
Indebtedness), net of all taxes and fees (including investment
banking
fees), commissions, costs and other expenses, in each case incurred
in
connection with such incurrence, issuance or sale.
For purposes of calculating the amount of Net Proceeds, fees,
commissions and
other costs and expenses payable to the Borrower or any Affiliate
of the
Borrower shall be disregarded, except for financial advisory fees
customary in
type and amount paid to a Permitted Investor.
-22-
<PAGE>
"Non-Consenting Lender" shall have the meaning assigned to such
term
in
Section 2.19(c).
"Note" shall have the meaning assigned to such term in Section
2.09(e).
"Obligation Currency" shall have the meaning assigned to such term
in
Section 9.21(a).
"Obligations" shall have the meaning assigned to such term in
the
Collateral Agreement.
"OFAC" shall have the meaning assigned to such term in Section
3.22(b).
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar
levies arising from any payment made hereunder or under any other
Loan Document
or from the execution, delivery or enforcement of, or otherwise
with respect to,
the Loan Documents, and any and all interest and penalties related
thereto.
"Participant" shall have the meaning assigned to such term in
Section
9.04(c).
"Participating Member States" shall mean the member states of
the
European Communities that adopt or have adopted the euro as their
lawful
currency in accordance with the legislation of the European Union
relating to
European Monetary Union.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to
and defined in ERISA.
"Perfection Certificate" shall mean a certificate in the form
of
Exhibit II to the Collateral Agreement or any other form approved
by the
Administrative Agent.
"Permitted Asset Swap" shall mean any transfer of Equity Interests
or
properties or other assets by the Borrower or any of the
Subsidiaries in which
at least 75% of the consideration received by the transferor
consists of
properties or other assets (other than cash or Permitted
Investments) useful in
the business of the Borrower or such Subsidiary; provided that the
aggregate
fair market value of the Equity Interests or property or other
assets being
transferred by the Borrower or such Subsidiary is not greater than
the aggregate
fair market value of the properties or other assets received by the
Borrower or
such Subsidiary in such transfer.
"Permitted Business Acquisition" shall mean any acquisition of all
or
substantially all the assets of, or all the Equity Interests (other
than
directors' qualifying shares) in, a person or division or line of
business of a
person (or any subsequent investment made in a person, division or
line of
business previously acquired in a Permitted Business Acquisition)
if (a) such
acquisition was not preceded by, or effected pursuant to, a hostile
offer by the
acquirer or an Affiliate of the acquirer and (b) immediately after
giving effect
thereto: (i) no Event of Default shall have occurred and be
continuing or would
result therefrom; (ii) all transactions related thereto shall be
consummated in
accordance with applicable laws; (iii) (A) the Borrower and its
Subsidiaries
shall be in compliance, on a Pro Forma Basis after giving effect to
such
acquisition or formation, with the Financial Performance Covenants
recomputed as
at the last day of the most recently ended fiscal quarter of the
Borrower and
its Subsidiaries, and the Borrower shall have delivered to the
Administrative
Agent a certificate of a Responsible Officer of the Borrower
certifying that
such transaction complies with this definition, together with all
relevant
financial information for such Subsidiary or assets, and (B) any
acquired or
newly formed Subsidiary shall not be liable for any Indebtedness
(except for
Indebtedness permitted by Section 6.01); and (iv) the person or
business to be
acquired shall be, or shall be engaged in, a business of the type
that the
Borrower and the Subsidiaries are
-23-
<PAGE>
permitted to be engaged in under Section 6.08 and the property
acquired in
connection with any such transaction shall be made subject to the
Lien of the
Security Documents, subject to Liens permitted by Section 6.02.
"Permitted Cure Security" shall mean an equity security of
Borrower
having no mandatory redemption, repurchase or similar requirements
prior to the
date that is 91 days after the Term Facility Maturity Date (or such
later date
that is the latest final maturity date of any Incremental Extension
of Credit),
and upon which all dividends or distributions (if any) shall, prior
to the date
that is 91 days after the Term Facility Maturity Date (or such
later date that
is the latest final maturity date of any Incremental Extension of
Credit), be
payable solely in additional shares of such equity security.
"Permitted Investments" shall mean:
(a) direct obligations of the United States of America or any
member
of
the European Union or any agency thereof or obligations guaranteed
by
the
United States of America or any member of the European Union or
any
agency thereof, in each case with maturities not exceeding one year
from
the
date of acquisition thereof;
(b) time deposit accounts, certificates of deposit and money
market
deposits maturing within 180 days of the date of acquisition
thereof issued
by a
bank or trust company that is organized under the laws of the
United
States of America, any state thereof or any foreign country
recognized by
the
United States of America having capital, surplus and undivided
profits
in
excess of $250 million and whose long-term debt, or whose parent
holding
company's long-term debt, is rated A (or such similar equivalent
rating or
higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act);
(c) repurchase obligations with a term of not more than 180 days
for
underlying securities of the types described in clause (a) above
entered
into
with a bank meeting the qualifications described in clause (b)
above;
(d) commercial paper, maturing not more than one year after the
date
of
acquisition, issued by a corporation (other than an Affiliate of
the
Borrower) organized and in existence under the laws of the United
States of
America or any foreign country recognized by the United States of
America
with
a rating at the time as of which any investment therein is made of
P-1
(or
higher) according to Moody's, or A-1 (or higher) according to
S& P;
(e) securities with maturities of one year or less from the date
of
acquisition issued or fully guaranteed by any State, commonwealth
or
territory of the United States of America, or by any political
subdivision
or
taxing authority thereof, and rated at least A by S&P or A by
Moody's;
(f) shares of mutual funds whose investment guidelines restrict 95%
of
such
funds' investments to those satisfying the provisions of clauses
(a)
through (e) above;
(g) money market funds that (i) comply with the criteria set forth
in
Rule
2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by
S&P and Aaa by Moody's and (iii) have portfolio assets of at
least $5,000.0
million; and
(h) time deposit accounts, certificates of deposit and money
market
deposits in an aggregate face amount not in excess of 1/2 of 1% of
the
total assets of the Borrower and its
-24-
<PAGE>
Subsidiaries, on a consolidated basis, as of the end of the
Borrower's most
recently completed fiscal year.
"Permitted Junior Debt" shall mean (a) unsecured subordinated
Indebtedness issued or incurred by the Borrower and (b) unsecured
senior
Indebtedness issued by the Borrower, (i) the terms of which, in the
case of each
of clauses (a) and (b), (1) do not provide for any scheduled
repayment,
mandatory redemption or sinking fund obligation prior to the date
that is six
months after the Term Facility Maturity Date (or such later date
that is the
latest final maturity date of any Incremental Extension of Credit)
and (2) in
the case of unsecured subordinated Indebtedness, provide for
subordination of
payments in respect of such Indebtedness to the Obligations and
guarantees
thereof under the Loan Documents customary for high yield
securities and (ii) in
respect of which no Subsidiary that is not an obligor under the
Loan Documents
is an obligor; provided that immediately prior to and after giving
effect to any
incurrence of Permitted Junior Debt, no Default has occurred or is
continuing or
shall result therefrom and the Borrower shall be in compliance with
Sections
6.11 and 6.12.
"Permitted Refinancing Indebtedness" shall mean any
Indebtedness
issued in exchange for, or the net proceeds of which are used to
extend,
refinance, renew, replace, defease or refund (collectively, to
"Refinance"), the
Indebtedness being Refinanced (or previous refinancings thereof
constituting
Permitted Refinancing Indebtedness); provided that (a) the
principal amount (or
accreted value, if applicable) of such Permitted Refinancing
Indebtedness does
not exceed the principal amount (or accreted value, if applicable)
of the
Indebtedness so Refinanced (plus unpaid accrued interest and
premium thereon and
underwriting discounts, fees, commissions and expenses), (b) the
average life to
maturity of such Permitted Refinancing Indebtedness is greater than
or equal to
that of the Indebtedness being Refinanced or the Term Loans, (c) if
the
Indebtedness being Refinanced is subordinated in right of payment
to the
Obligations under this Agreement, such Permitted Refinancing
Indebtedness shall
be subordinated in right of payment to such Obligations on terms at
least as
favorable to the Lenders as those contained in the documentation
governing the
Indebtedness being Refinanced, (d) no Permitted Refinancing
Indebtedness shall
have different obligors, or greater guarantees or security, than
the
Indebtedness being Refinanced and (e) except as set forth in clause
(x) of the
immediately succeeding proviso, if the Indebtedness being
Refinanced is secured
by any collateral (whether equally and ratably with, or junior to,
the Secured
Parties or otherwise), such Permitted Refinancing Indebtedness may
be secured by
such collateral on terms no less favorable to the Secured Parties
than those
contained in the documentation governing the Indebtedness being
Refinanced; and
provided, further, that with respect to a Refinancing of Permitted
Junior Debt,
such Permitted Refinancing Indebtedness shall meet the requirements
of clauses
(i) and (ii) of the definition of "Permitted Junior Debt".
"Person" shall mean any natural person, corporation, business
trust,
joint venture, association, company, partnership, limited liability
company or
government, individual or family trusts, or any agency or political
subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code and in respect of which the Borrower, any
Subsidiary or any
ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Platform" shall have the meaning assigned to such term in
Section
9.17(b).
"Pledged Collateral" shall have the meaning assigned to such term
in
the Collateral Agreement provided, however, that, notwithstanding
anything to
the contrary, Pledged Collateral shall not include (i) any
outstanding stock of
a Controlled Foreign Subsidiary entitled to vote in excess of 65%
of the total
combined voting power of all classes of stock of such Controlled
Foreign
Subsidiary entitled to
-25-
<PAGE>
vote (within the meaning of Treasury Regulation Section
1.956-2(c)(2) or any
successor provision thereto) or (ii) any asset of a Controlled
Foreign
Subsidiary (within the meaning of Treasury Regulation Section
1.956-2(c)(2) or
any successor provision thereto or a subsidiary of a Controlled
Foreign
Subsidiary. For the avoidance of doubt, any stock of another
corporation owned
by a Controlled Foreign Subsidiary is an asset of a Controlled
Foreign
Subsidiary.
"pounds," "GBP" or "L" shall mean lawful money of the United
Kingdom.
"Pricing Grid" shall mean the table set forth below:
<TABLE>
<CAPTION>
Applicable Margin Applicable Margin
Consolidated
for ABR Loans for Eurocurrency
Commitment
Leverage Ratio
Loans
Loans
Fee Rate
--------------
----------------- -----------------
----------
<S>
<C>
<C>
<C>
Greater than 3.25 to 1.0
1.00%
2.00%
0.50%
Less than or equal to 3.25 to
1.0, but greater than 3.0 to
1.0
0.75%
1.75%
0.50%
Less than or equal to 3.0 to
0.50%
1.50%
0.375%
1.0
</TABLE>
For the purposes of the Pricing Grid, changes in the Applicable
Margin
or the Commitment Fee Rate resulting from changes in the
Consolidated Leverage
Ratio shall become effective on the date following the Closing Date
(the
"Adjustment Date") that is three Business Days after the date on
which financial
statements are delivered to the Lenders pursuant to Section 5.04
and shall
remain in effect until the next change to be effected pursuant to
this
paragraph. If any financial statements referred to above are not
delivered
within the time periods specified in Section 5.04, then, until the
date that is
three Business Days after the date on which such financial
statements are
delivered, the highest rate set forth in each column of the Pricing
Grid shall
apply. In addition, at all times while an Event of Default shall
have occurred
and be continuing, the highest rate set forth in each column of the
Pricing Grid
shall apply. Each determination of the Consolidated Leverage Ratio
pursuant to
the Pricing Grid shall be made in a manner consistent with the
determination
thereof pursuant to Section 6.12.
"Primary obligor" shall have the meaning given such term in the
definition of the term "Guarantee."
"Pro Forma Basis" shall mean, as to any person, for any events
that
occur subsequent to the commencement of a period for which the
financial effect
of such events is being calculated, and giving effect to the events
for which
such calculation is being made, such calculation as will give pro
forma effect
to such events as if such events occurred on the first day of the
most recent
four consecutive fiscal quarter period (the "Reference Period")
ended on or
before the occurrence of such event for which financial statements
have been
delivered for the quarter or fiscal year ending on the last day of
such period
pursuant to Section 5.04, or if such events occur before the first
day of the
first four consecutive fiscal quarter period for which financial
statements are
required to be delivered pursuant to Section 5.04, financial
statements for the
Borrower and its subsidiaries generated by the Borrower that
generally comply
with Section 5.04: (i) in making any determination of EBITDA, pro
forma effect
shall be given to any asset disposition, any acquisition permitted
hereunder,
any discontinued operation or any operational change (or any
similar transaction
or transactions that require a waiver or consent of the Required
Lenders
pursuant to Section 6.04 or 6.05), in each case that occurred
during the
Reference
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<PAGE>
Period (or, in the case of determinations made pursuant to the
definition of the
term "Permitted Business Acquisition," occurring during the
Reference Period or
thereafter and through and including the date upon which the
Permitted Business
Acquisition is consummated), (ii) in making any determination on a
Pro Forma
Basis, (x) all Indebtedness (including Indebtedness incurred or
assumed and for
which the financial effect is being calculated, whether incurred
under this
Agreement or otherwise, but excluding normal fluctuations in
revolving
Indebtedness incurred for working capital purposes and not used to
finance any
acquisition permitted hereunder) incurred or permanently repaid
during the
Reference Period (or, in the case of determinations made pursuant
to the
definition of the term "Permitted Business Acquisition," occurring
during the
Reference Period or thereafter and through and including the date
upon which the
Permitted Business Acquisition is consummated) shall be deemed to
have been
incurred or repaid at the beginning of such period and (y) Interest
Expense of
such person attributable to interest on any Indebtedness, for which
pro forma
effect is being given as provided in preceding clause (x), bearing
floating
interest rates shall be computed on a pro forma basis as if the
rates that would
have been in effect during the period for which pro forma effect is
being given
had been actually in effect during such periods and (iii) the
Subsidiary
Redesignation, if any, then being designated as well as any other
Subsidiary
Redesignation after the first day of the relevant Reference Period
and on or
prior to the date of the respective Subsidiary Redesignation then
being
designated.
Pro forma calculations made pursuant to the definition of the
term
"Pro Forma Basis" shall be determined in good faith by a
Responsible Officer of
the Borrower and, for any fiscal period ending on or prior to the
first
anniversary of an acquisition permitted hereunder, asset
disposition,
discontinued operation or operational change (or any similar
transaction or
transactions that require a waiver or consent of the Required
Lenders pursuant
to Section 6.04 or 6.05), may include adjustments to reflect
operating expense
reductions and other operating improvements or synergies reasonably
expected to
result from such acquisition permitted hereunder, asset disposition
or other
similar transaction, as follows: (x) for purposes of determining
the Applicable
Margin, such adjustments shall reflect demonstrable operating
expense reductions
and other demonstrable operating improvements or synergies that
would be
includable in pro forma financial statements prepared in accordance
with
Regulation S-X under the Securities Act; and (y) for purposes of
determining
compliance with the Financial Performance Covenants and achievement
of other
financial measures provided for herein, such adjustments may
reflect additional
operating expense reductions and other additional operating
improvements or
synergies that would not be includable in pro forma financial
statements
prepared in accordance with Regulation S-X but for which
substantially all of
the steps necessary for the realization thereof have been taken or
are
reasonably anticipated by the Borrower to be taken in the next
12-month period
following the consummation thereof, are estimated on a good faith
basis by the
Borrower; provided, however, that the aggregate amount of any such
adjustments
with respect to operational changes shall not exceed $10 million in
any fiscal
year. The Borrower shall deliver to the Administrative Agent a
certificate of a
Financial Officer of the Borrower setting forth such demonstrable
or additional
operating expense reductions and other operating improvements and
synergies and
information and calculations supporting them in reasonable
detail.
"Pro Forma EBITDA" shall have the meaning assigned to such term
in
Section 3.05(a).
"Pro Forma Financial Statements" shall have the meaning assigned
to
such term in Section 3.05(a).
"Projections" shall mean the projections of the Borrower and
its
Subsidiaries included in the Information Memorandum and any other
projections
and any forward-looking statements (including statements with
respect to booked
business) of such entities furnished to the Lenders or the
Administrative Agent
by or on behalf of the Borrower or any Subsidiary prior to the
Closing Date.
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<PAGE>
"Qualified
Capital Stock" means any Equity Interests of any Person
that does not by its terms (or by the terms of any security into
which it is
convertible or for which it is exchangeable or exercisable) or upon
the
happening of any event (a) provide for scheduled payments of
dividends in cash,
(b) become mandatorily redeemable (other than pursuant to customary
provisions
relating to redemption upon a change of control or sale of assets)
pursuant to a
sinking fund obligation or otherwise prior to the date that is 91
days after the
Term Facility Maturity Date (or such later date that is the latest
final
maturity date of any Incremental Extension of Credit), (c) become
convertible or
exchangeable at the option of the holder thereof for Indebtedness
or Equity
Interests that are not Qualified Capital Stock, or (d) contain any
maintenance
covenants, other covenants adverse to the Lenders or remedies
(other than voting
rights and increases in dividends).
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing
and any Interest Period, the day on which it is market practice in
the relevant
interbank market for prime banks to give quotations for deposits in
the currency
of such Borrowing for delivery on the first day of such Interest
Period. If such
quotations would normally be given by prime banks on more than one
day, the
Quotation Day will be the last of such days.
"Reference Period" shall have the meaning assigned to such term in
the
definition of the term "Pro Forma Basis."
"Refinance" shall have the meaning assigned to such term in the
definition of the term "Permitted Refinancing Indebtedness," and
"Refinanced"
shall have a meaning correlative thereto.
"Register" shall have the meaning assigned to such term in
Section
9.04(b).
"Regulation U" shall mean Regulation U of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified
person,
such person's Affiliates and the respective directors, trustees,
officers,
employees, agents and advisors of such person and such person's
Affiliates.
"Release" shall mean any spilling, leaking, seepage, pumping,
pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping,
disposing, depositing, emanating or migrating in, into, onto or
through the
environment.
"Relevant Currency Equivalent" shall mean the Dollar Equivalent
or
each Alternate Currency Equivalent, as applicable.
"Remaining Present Value" shall mean, as of any date with respect
to
any lease, the present value as of such date of the scheduled
future lease
payments with respect to such lease, determined with a discount
rate equal to a
market rate of interest for such lease reasonably determined at the
time such
lease was entered into.
"Reportable Event" shall mean any reportable event as defined
in
Section 4043(c) of ERISA or the regulations issued thereunder,
other than those
events as to which the 30-day notice period referred to in Section
4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan
maintained
-28-
<PAGE>
by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to
subsection (m) or (o) of Section 414 of the Code).
"Required Lenders" shall mean, at any time, Lenders having (a)
Loans
(other than Swingline Loans) outstanding, (b) Revolving L/C
Exposures, (c)
Swingline Exposures and (d) Available Unused Commitments, that
taken together,
represent more than 50% of the sum of (w) all Loans (other than
Swingline Loans)
outstanding, (x) Revolving L/C Exposures, (y) Swingline Exposures
and (z) the
total Available Unused Commitments at such time. The Loans,
Revolving L/C
Exposures, Swingline Exposures and Available Unused Commitment of
any Defaulting
Lender shall be disregarded in determining Required Lenders at any
time.
"Required Percentage" shall mean, with respect to any Excess Cash
Flow
Period, 50%; provided that (a) if the Consolidated Leverage Ratio
at the end of
such Excess Cash Flow Period is greater than 3.0:1.00 but less than
or equal to
3.25:1.00, such percentage shall be 25%, and (b) if the
Consolidated Leverage
Ratio at the end of such Excess Cash Flow Period is less than or
equal to
3.00:1.00, such percentage shall be 0%.
"Responsible Officer" of any person shall mean any executive
officer
or Financial Officer of such person and any other officer or
similar official
thereof responsible for the administration of the obligations of
such person in
respect of this Agreement.
"Revolving Facility" shall mean the Revolving Facility Commitments
and
the extensions of credit made hereunder by the Revolving Facility
Lenders.
"Revolving Facility Borrowing" shall mean a Borrowing comprised
of
Revolving Facility Loans.
"Revolving Facility Commitment" shall mean, with respect to
each
Revolving Facility Lender, the commitment of such Revolving
Facility Lender to
make Revolving Facility Loans pursuant to Section 2.01, expressed
as an amount
representing the maximum aggregate permitted amount of such
Revolving Facility
Lender's Revolving Facility Credit Exposure hereunder, as such
commitment may be
(a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or
increased from time to time pursuant to assignments by or to such
Lender under
Section 9.04. The initial amount of each Revolving Facility
Lender's Revolving
Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and
Acceptance pursuant to which such Revolving Facility Lender shall
have assumed
its Revolving Facility Commitment, as applicable. The initial
aggregate amount
of the Revolving Facility Commitments is $75.0 million.
"Revolving Facility Credit Exposure" shall mean, at any time, the
sum
of (a) the aggregate principal amount of the Revolving Facility
Loans
outstanding at such time, (b) the Swingline Exposure at such time
and (c) the
Revolving L/C Exposure at such time. The Revolving Facility Credit
Exposure of
any Revolving Facility Lender at any time shall be the sum of (x)
the aggregate
principal amount of such Revolving Facility Lender's Revolving
Facility Loans
outstanding at such time and (y) such Revolving Facility Lender's
(i) Swingline
Exposure and (ii) Revolving L/C Exposure at such time.
"Revolving Facility Lender" shall mean a Lender with a
Revolving
Facility Commitment or with outstanding Revolving Facility
Loans.
"Revolving Facility Loan" shall mean a Loan made by a Revolving
Facility Lender pursuant to Section 2.01(b).
-29-
<PAGE>
"Revolving Facility Maturity Date" shall mean March 31, 2012 or,
if
such date is not a Business Day, the Business Day immediately
preceding such
date.
"Revolving Facility Percentage" shall mean, with respect to any
Revolving Facility Lender, the percentage of the total Revolving
Facility
Commitments represented by such Lender's Revolving Facility
Commitment. If the
Revolving Facility Commitments have terminated or expired, the
Revolving
Facility Percentages shall be determined based upon the Revolving
Facility
Commitments most recently in effect, giving effect to any
assignments pursuant
to Section 9.04.
"Revolving L/C Exposure" shall mean at any time the sum of (a)
the
aggregate undrawn amount of all Letters of Credit outstanding at
such time (in
the case of Alternate Currency Letters of Credit, the Dollar
Equivalent of such
amount) and (b) the aggregate principal amount of all L/C
Disbursements that
have not yet been reimbursed at such time (in the case of Alternate
Currency L/C
Disbursements, the Dollar Equivalent of such amount). The Revolving
L/C Exposure
of any Revolving Facility Lender at any time shall mean its
Revolving Facility
Percentage of the aggregate Revolving L/C Exposure at such
time.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"Sale and Lease-Back Transaction" shall have the meaning assigned
to
such term in Section 6.03.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Secured Parties" shall mean the "Secured Parties" as defined in
the
Collateral Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Documents" shall mean the Mortgages, the Collateral
Agreement, the Foreign Pledge Agreements and each of the security
agreements,
mortgages and other instruments and documents executed and
delivered pursuant to
any of the foregoing or pursuant to Section 5.10.
"Social Security Act" shall mean the Social Security Act of 1965
as
set forth in Title 42 of the United States Code, as amended, and
any successor
statute thereto, as interpreted by the rules and regulations issued
thereunder,
in each case as in effect from time to time. References to sections
of the
Social Security Act shall be construed to refer to any successor
sections.
"Sponsor" shall mean Warburg Pincus LLC.
"Sponsor Affiliate" means (i) each Controlled Affiliate of the
Sponsor
and (ii) each partner, officer, director, principal or member of
the Sponsor.
"Spot Selling Rate" shall mean the spot selling rate at which
the
Administrative Agent offers to sell such Alternate Currency for
dollars in the
London foreign exchange market at approximately 11:00 a.m. London
time on such
date for delivery two (2) Business Days later.
"Statutory Reserves" shall mean, with respect to any currency,
any
reserve, liquid asset or similar requirements established by any
Governmental
Authority of the United States of America or of the jurisdiction of
such
currency or any jurisdiction in which Loans in such currency are
made to which
banks in such jurisdiction are subject for any category of deposits
or
liabilities customarily used to fund
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loans in such currency or by reference to which interest rates
applicable to
Loans in such currency are determined.
"Subordinated Intercompany Debt" shall have the meaning assigned
to
such term in Section 6.01(e).
"subsidiary" shall mean, with respect to any person (herein
referred
to as the "parent"), any corporation, partnership, association or
other business
entity (a) of which securities or other ownership interests
representing more
than 50% of the equity or more than 50% of the ordinary voting
power or more
than 50% of the general partnership interests are, at the time any
determination
is being made, directly or indirectly, owned, Controlled or held,
or (b) that
is, at the time any determination is made, otherwise Controlled, by
the parent
or one or more subsidiaries of the parent or by the parent and one
or more
subsidiaries of the parent.
"Subsidiary" shall mean, unless the context otherwise requires,
a
subsidiary of the Borrower. Notwithstanding the foregoing (and
except for
purposes of Sections 3.09, 3.13, 3.15, 3.16, 5.03, 5.09 and
7.01(k), and the
definition of "Unrestricted Subsidiary" contained herein), an
Unrestricted
Subsidiary shall be deemed not to be a subsidiary of the Borrower
or any of the
Borrower's subsidiaries for purposes of this Agreement.
"Subsidiary Loan Party" shall mean (A) each Wholly Owned Subsidiary
of
the Borrower that is not a Foreign Subsidiary and (B) each Domestic
Subsidiary
of the Borrower other than any Domestic Subsidiary that is a
subsidiary of a
Controlled Foreign Subsidiary.
"Subsidiary Redesignation" shall have the meaning provided in
the
definition of "Unrestricted Subsidiary" contained in this Section
1.01.
"Swap Agreement" shall mean any agreement with respect to any
swap,
forward, future or derivative transaction or option or similar
agreement
involving, or settled by reference to, one or more rates,
currencies,
commodities, equity or debt instruments or securities, or economic,
financial or
pricing indices or measures of economic, financial or pricing risk
or value or
any similar transaction or any combination of these transactions;
provided that
no phantom stock or similar plan providing for payments only on
account of
services provided by current or former directors, officers,
employees or
consultants of the Borrower or any Subsidiary shall be a Swap
Agreement.
"Swingline Borrowing" shall mean a Borrowing comprised of
Swingline
Loans.
"Swingline Borrowing Request" shall mean a request by the
Borrower
substantially in the form of Exhibit C-2.
"Swingline Commitment" shall mean, with respect to each
Swingline
Lender, the commitment of such Swingline Lender to make Swingline
Loans pursuant
to Section 2.04. The aggregate amount of the Swingline Commitments
on the
Closing Date is $7.5 million.
"Swingline Exposure" shall mean at any time the aggregate
principal
amount of all outstanding Swingline Borrowings at such time. The
Swingline
Exposure of any Revolving Facility Lender at any time shall mean
its Revolving
Facility Percentage of the aggregate Swingline Exposure at such
time.
"Swingline Lender" shall mean UBS Loan Finance LLC, in its capacity
as
a lender of Swingline Loans, and its successor(s) in such
capacity.
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"Swingline Loans" shall mean the swingline loans made to the
Borrower
pursuant to Section 2.04.
"Syndication Agent" shall have the meaning assigned to such term
in
the introductory paragraph of this Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges
(including ad
valorem charges) or withholdings imposed by any Governmental
Authority and any
and all interest and penalties related thereto.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
"Term Facility" shall mean the Term Loan Commitments and the
Term
Loans made hereunder.
"Term Facility Maturity Date" shall mean March 31, 2013 or, if
such
date is not a Business Day, the Business Day immediately preceding
such date.
"Term Loan Commitment" shall mean with respect to each Lender,
the
commitment of such Lender to make Term Loans as set forth in
Section 2.01. The
aggregate amount of the Term Loan Commitments on the Closing Date
is $355.0
million.
"Term Loan Installment Date" shall have the meaning assigned to
such
term in Section 2.10(a).
"Term Loans" shall mean the term loans made by each Lender with a
Term
Loan Commitment to the Borrower pursuant to Section 2.01(a).
"Test Period" shall mean, on any date of determination, the period
of
four consecutive fiscal quarters of the Borrower then most recently
ended (taken
as one accounting period).
"Total Assets" shall mean, as of any date, the total amount of
tangible and intangible assets of the Borrower and the Subsidiaries
on a
consolidated basis at the end of the fiscal quarter immediately
preceding such
date.
"Transaction Costs" means fees and expenses payable or otherwise
borne
by the Borrower and its Subsidiaries in connection with the
Transactions
occurring on or about the Closing Date.
"Transaction Documents" shall mean the Acquisition Agreement and
the
Loan Documents.
"Transactions" shall mean, collectively, the transactions to
occur
pursuant to the Transaction Documents, including (a) the
consummation of the
Acquisitions pursuant to the Acquisition Agreement; (b) the
execution and
delivery of the Loan Documents and the initial borrowings
hereunder; and (c) the
payment of the Transaction Costs.
"Type", when used in respect of any Loan or Borrowing, shall refer
to
the Rate by reference to which interest on such Loan or on the
Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate"
shall include
the Adjusted LIBO Rate and the ABR.
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"U.S. Bankruptcy Code" shall mean Title 11 of the United States
Code,
as amended, or any similar federal or state law for the relief of
debtors.
"Unrestricted Subsidiary" shall mean any Subsidiary that is
acquired
or created after the Closing Date and designated by the Borrower as
an
Unrestricted Subsidiary hereunder by written notice to the
Administrative Agent;
provided that the Borrower shall only be permitted to so designate
a new
Unrestricted Subsidiary after the Closing Date and so long as (a)
no Default or
Event of Default exists or would result therefrom and (b) such
Unrestricted
Subsidiary shall be capitalized (to the extent capitalized by the
Borrower or
any Subsidiary) through Investments as permitted by, and in
compliance with,
Section 6.04(j), with any assets owned by such Unrestricted
Subsidiary at the
time of the initial designation thereof to be treated as
Investments pursuant to
Section 6.04(j); provided that at the time of the initial
Investment by the
Borrower or any Subsidiary in such Subsidiary, the Borrower shall
designate such
entity as an Unrestricted Subsidiary in a written notice to the
Administrative
Agent. The Borrower may designate any Unrestricted Subsidiary to be
a Subsidiary
for purposes of this Agreement (each, a "Subsidiary
Redesignation"); provided
that (i) such Unrestricted Subsidiary, both before and after giving
effect to
such designation, shall be a Wholly Owned Subsidiary of the
Borrower, (ii) no
Default or Event of Default then exists or would occur as a
consequence of any
such Subsidiary Redesignation (including, but not limited to, under
Sections
6.01 and 6.02), (iii) calculations are made by the Borrower of
compliance with
the Financial Performance Covenants for the relevant Reference
Period, on a Pro
Forma Basis as if the respective Subsidiary Redesignation (as well
as all other
Subsidiary Redesignations theretofore consummated after the first
day of such
Reference Period) had occurred on the first day of such Reference
Period, and
such calculations shall show that such financial covenants would
have been
complied with if the Subsidiary Redesignation had occurred on the
first day of
such Reference Period (for this purpose, if the first day of the
respective
Reference Period occurs prior to the Closing Date, calculated as if
the
Financial Performance Covenants had been applicable from the first
day of the
Reference Period, (iv) based on good faith projections prepared by
the Borrower
for the period from the date of the respective Subsidiary
Redesignation to the
date that is one year thereafter, the level of financial
performance measured by
the Financial Performance Covenants shall be better than or equal
to such level
as would be required to provide that no Default or Event of Default
would exist
under the Financial Performance Covenants through the date that is
one year from
the date of the respective Subsidiary Redesignation, (v) all
representations and
warranties contained herein and in the other Loan Documents shall
be true and
correct in all material respects with the same effect as though
such
representations and warranties had been made on and as of the date
of such
Subsidiary Redesignation (both before and after giving effect
thereto), unless
stated to relate to a specific earlier date, in which case such
representations
and warranties shall be true and correct in all material respects
as of such
earlier date, (vi) the Borrower shall have delivered to the
Administrative Agent
an officer's certificate executed by a Responsible Officer of the
Borrower,
certifying to the best of such officer's knowledge, compliance with
the
requirements of preceding clauses (i) through (v), inclusive, and
containing the
calculations required by the preceding clauses (iii) and (iv).
"Wholly Owned Subsidiary" of any person shall mean a subsidiary
of
such person, all of the Equity Interests of which (other than
directors'
qualifying shares or nominee or other similar shares required
pursuant to
applicable law) are owned by such person or another Wholly Owned
Subsidiary of
such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as
a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"Working Capital" shall mean, with respect to the Borrower and
its
Subsidiaries on a consolidated basis at any date of determination,
Current
Assets at such date of determination minus
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Current Liabilities at such date of determination; provided that,
for purposes
of calculating Excess Cash Flow, increases or decreases in Working
Capital shall
be calculated without regard to any changes in Current Assets or
Current
Liabilities as a result of (a) any reclassification in accordance
with GAAP of
assets or liabilities, as applicable, between current and
noncurrent, (b) the
effects of purchase accounting or (c) the effect of fluctuations in
the amount
of accrued or contingent obligations under Swap Agreements.
"yen" shall mean the lawful money of Japan.
SECTION 1.02. Terms Generally. The definitions set forth or
referred
to in Section 1.01 shall apply equally to both the singular and
plural forms of
the terms defined. Whenever the context may require, any pronoun
shall include
the corresponding masculine, feminine and neuter forms. The words
"include,"
"includes" and "including" shall be deemed to be followed by the
phrase "without
limitation." All references herein to Articles, Sections, Exhibits
and Schedules
shall be deemed references to Articles and Sections of, and
Exhibits and
Schedules to, this Agreement unless the context shall otherwise
require. Except
as otherwise expressly provided herein, any reference in this
Agreement to any
Loan Document shall mean such document as amended, restated,
supplemented or
otherwise modified from time to time. Except as otherwise expressly
provided
herein, all terms of an accounting or financial nature shall be
construed in
accordance with GAAP, as in effect from time to time; provided
that, if the
Borrower notifies the Administrative Agent that the Borrower
requests an
amendment to any provision hereof to eliminate the effect of any
change
occurring after the Closing Date in GAAP or in the application
thereof on the
operation of such provision (or if the Administrative Agent
notifies the
Borrower that the Required Lenders request an amendment to any
provision hereof
for such purpose), regardless of whether any such notice is given
before or
after such change in GAAP or in the application thereof, then such
provision
shall be interpreted on the basis of GAAP as in effect and applied
immediately
before such change shall have become effective until such notice
shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.03. Effectuation of Transfers. Each of the
representations
and warranties of the Borrower contained in this Agreement (and
all
corresponding definitions) are made after giving effect to the
Transactions,
unless the context otherwise requires.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions
set
forth herein:
(a) each Lender with a Term Loan Commitment agrees to make Term
Loans
to the Borrower on the Closing Date in a principal amount not to
exceed its Term
Loan Commitment; and
(b) each Revolving Facility Lender agrees to make Revolving
Facility
Loans to the Borrower from time to time during the Availability
Period in an
aggregate principal amount that will not result in (i) such
Revolving Facility
Lender's Revolving Facility Credit Exposure exceeding such
Revolving Facility
Lender's Revolving Facility Commitment or (ii) the total Revolving
Facility
Credit Exposure exceeding the total Revolving Facility Commitments;
provided
that the aggregate principal amount of Revolving Facility Loans
made on the
Closing Date shall not exceed $7.5 million. Within the foregoing
limits and
subject to the terms and conditions set forth herein, the Borrower
may borrow,
prepay and reborrow Revolving Facility Loans.
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SECTION 2.02. Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of
Loans
under the same Facility and of the same Type made by the Lenders
ratably in
accordance with their respective Commitments under the applicable
Facility (or,
in the case of Swingline Loans, in accordance with their respective
Swingline
Commitments); provided, however, that Revolving Facility Loans
shall be made by
the Revolving Facility Lenders ratably in accordance with their
respective
Revolving Facility Percentages on the date such Loans are made
hereunder. The
failure of any Lender to make any Loan required to be made by it
shall not
relieve any other Lender of its obligations hereunder; provided
that the
Commitments of the Lenders are several and no Lender shall be
responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Borrowing (other than a
Swingline
Borrowing) shall be comprised entirely of ABR Loans or Eurocurrency
Loans as the
Borrower may request in accordance herewith. Each Swingline
Borrowing shall be
an ABR Borrowing. Each Lender at its option may make any ABR Loan
or
Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such
Lender to make such Loan; provided that any exercise of such option
shall not
affect the obligation of the Borrower to repay such Loan in
accordance with the
terms of this Agreement and such Lender shall not be entitled to
any amounts
payable under Section 2.15 or 2.17 solely in respect of increased
costs
resulting from such exercise and existing at the time of such
exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an
integral multiple of the Borrowing Multiple and not less than the
Borrowing
Minimum. At the time that each ABR Revolving Borrowing is made,
such Borrowing
shall be in an aggregate amount that is an integral multiple of the
Borrowing
Multiple and not less than the Borrowing Minimum; provided that an
ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire
unused
balance of the Revolving Facility Commitments or that is required
to finance the
reimbursement of an L/C Disbursement as contemplated by Section
2.05(e). Each
Swingline Borrowing shall be in an amount that is an integral
multiple of the
Borrowing Multiple and not less than the Borrowing Minimum.
Borrowings of more
than one Type and under more than one Facility may be outstanding
at the same
time; provided that there shall not at any time be more than a
total of (i) 5
Eurocurrency Borrowings outstanding under the Term Facility and
(ii) 10
Eurocurrency Borrowings outstanding under the Revolving
Facility.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert
or continue,
any Borrowing if the Interest Period requested with respect thereto
would end
after the Revolving Facility Maturity Date or the Term Facility
Maturity Date,
as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing and/or a Term Borrowing, the Borrower shall notify the
Administrative
Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing,
not later than 11:00 a.m., Local Time, three Business Days before
the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not
later than
12:00 noon, Local Time, one Business Day before the date of the
proposed
Borrowing; provided that any such notice of an ABR Revolving
Borrowing to
finance the reimbursement of an L/C Disbursement as contemplated by
Section
2.05(e) may be given not later than 10:00 a.m., Local Time, on the
date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable
and shall be confirmed promptly by hand delivery or telecopy to
the
Administrative Agent of a written Borrowing Request in a form
approved by the
Administrative Agent and signed by the Borrower. Each such
telephonic and
written Borrowing Request shall specify the following information
in compliance
with Section 2.02:
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(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest
Period to be applicable thereto, which shall be a period
contemplated by
the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds
are
to be disbursed.
If no election as to the Type of Revolving Borrowing is specified,
then the
requested Revolving Borrowing shall be an ABR Borrowing. If no
Interest Period
is specified with respect to any requested Eurocurrency Borrowing,
then the
Borrower shall be deemed to have selected an Interest Period of one
month's
duration. Promptly following receipt of a Borrowing Request in
accordance with
this Section 2.03, the Administrative Agent shall advise each
Lender of the
details thereof and of the amount of such Lender's Loan to be made
as part of
the requested Borrowing.
SECTION 2.04. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower
from time to
time during the Availability Period in an aggregate principal
amount at any time
outstanding that will not result in (i) the aggregate principal
amount of
outstanding Swingline Loans exceeding the Swingline Commitment or
(ii) the total
Revolving Facility Credit Exposure exceeding the total Revolving
Facility
Commitments; provided that the Swingline Lender shall not be
required to make a
Swingline Loan to refinance an outstanding Swingline Borrowing.
Within the
foregoing limits and subject to the terms and conditions set forth
herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Borrowing, the Borrower shall notify
the
Administrative Agent and the Swingline Lender of such request by
telephone
(confirmed promptly by a Swingline Borrowing Request by telecopy),
not later
than 11:00 a.m., Local Time, on the day of a proposed Swingline
Borrowing. Each
such notice and Swingline Borrowing Request shall be irrevocable
and shall
specify (i) the requested date (which shall be a Business Day),
(ii) the amount
of the requested Swingline Borrowing and (iii) the location and
number of the
Borrower's account to which funds comprising the requested
Swingline Borrowing
are to be disbursed. The Swingline Lender shall consult with the
Administrative
Agent as to whether the making of the Swingline Loan is in
accordance with the
terms of this Agreement prior to the Swingline Lender funding such
Swingline
Loan. The Swingline Lender shall make each Swingline Loan in
accordance with
Section 2.02(a) on the proposed date thereof by wire transfer of
immediately
available funds by 3:00 p.m., Local Time, to the account of the
Borrower (or, in
the case of a Swingline Borrowing made to finance the reimbursement
of an L/C
Disbursement as provided in Section 2.05(e), by remittance to the
applicable
Issuing Bank).
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., Local Time, on any
Business Day
require the Revolving Facility Lenders to acquire participations on
such
Business Day in all or a portion of the outstanding Swingline Loans
made by it.
Such notice shall specify the aggregate amount of such Swingline
Loans in which
the Revolving Facility Lenders will participate. Promptly upon
receipt of such
notice, the Administrative Agent will give
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notice thereof to each such Lender, specifying in such notice such
Revolving
Facility Lender's Revolving Facility Percentage of such Swingline
Loan or Loans.
Each Revolving Facility Lender hereby absolutely and
unconditionally agrees,
upon receipt of notice as provided above, to pay to the
Administrative Agent for
the account of the Swingline Lender, such Revolving Facility
Lender's Revolving
Facility Percentage of such Swingline Loan or Loans. Each Revolving
Facility
Lender acknowledges and agrees that its obligation to acquire
participations in
Swingline Loans pursuant to this paragraph is absolute and
unconditional and
shall not be affected by any circumstance whatsoever, including the
occurrence
and continuance of a Default or reduction or termination of the
Commitments, and
that each such payment shall be made without any offset, abatement,
withholding
or reduction whatsoever. Each Revolving Facility Lender shall
comply with its
obligation under this paragraph by wire transfer of immediately
available funds,
in the same manner as provided in Section 2.06 with respect to
Loans made by
such Revolving Facility Lender (and Section 2.06 shall apply,
mutatis mutandis,
to the payment obligations of the Lenders), and the Administrative
Agent shall
promptly pay to the Swingline Lender the amounts so received by it
from the
Revolving Facility Lenders. The Administrative Agent shall notify
the Borrower
of any participations in any Swingline Loan acquired pursuant to
this paragraph,
and thereafter payments in respect of such Swingline Loan shall be
made to the
Administrative Agent and not to the Swingline Lender. Any amounts
received by
the Swingline Lender from the Borrower (or other party on behalf of
the
Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender
of the proceeds of a sale of participations therein shall be
promptly remitted
to the Administrative Agent; any such amounts received by the
Administrative
Agent shall be promptly remitted by the Administrative Agent to the
Revolving
Facility Lenders that shall have made their payments pursuant to
this paragraph
and to the Swingline Lender, as their interests may appear;
provided that any
such payment so remitted shall be repaid to the Swingline Lender or
to the
Administrative Agent, as applicable, if and to the extent such
payment is
required to be refunded to the Borrower for any reason. The
purchase of
participations in a Swingline Loan pursuant to this paragraph shall
not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. In addition, subject to the terms and conditions
set
forth herein, the Borrower may request the issuance of Letters of
Credit in
Dollars, or if an Issuing Bank notifies the Borrower and the
Administrative
Agent that it is capable of doing so, in an Alternate Currency, for
its own
account or the account of a Subsidiary in a form reasonably
acceptable to the
applicable Issuing Bank, at any time and from time to time during
the
Availability Period and prior to the date that is five Business
Days prior to
the Revolving Facility Maturity Date; provided that the Borrower
shall be a
co-applicant, and be jointly and severally liable, with respect to
each Letter
of Credit issued for the account of a Subsidiary. In the event of
any
inconsistency between the terms and conditions of this Agreement
and the terms
and conditions of any form of letter of credit application or other
agreement
submitted by the Borrower to, or entered into by the Borrower with,
an Issuing
Bank relating to any Letter of Credit, the terms and conditions of
this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment,
renewal (other than an automatic renewal in accordance with
paragraph (c) of
this Section) or extension of an outstanding Letter of Credit), the
Borrower
shall hand deliver or telecopy (or transmit by electronic
communication, if
arrangements for doing so have been approved by the applicable
Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (three
Business Days in
advance of the requested date of issuance, amendment, renewal or
extension) a
notice requesting the issuance of a Letter of Credit, or
identifying the Letter
of Credit to be amended, renewed or extended, and specifying the
Approved
Currency, the date of issuance, amendment, renewal or extension
(which shall be
a Business Day), the date on which such Letter of Credit is to
expire (which
shall comply with paragraph (c) of this Section), the amount of
such Letter of
Credit, whether the
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Letter of Credit is to be issued for its own account or for the
account of a
Subsidiary (provided that the Borrower shall be a co-applicant, and
therefore
jointly and severally liable, with respect to each Letter of Credit
issued for
the account of a Subsidiary), the name and address of the
beneficiary thereof
and such other information as shall be necessary to issue, amend,
renew or
extend such Letter of Credit. If requested by the applicable
Issuing Bank, the
Borrower also shall submit a letter of credit application on such
Issuing Bank's
standard form in connection with any request for a Letter of
Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and
upon issuance,
amendment, renewal or extension of each Letter of Credit the
Borrower shall be
deemed to represent and warrant that), after giving effect to such
issuance,
amendment, renewal or extension (i) the Revolving L/C Exposure
shall not exceed
the total L/C Commitment, (ii) the total Revolving Facility Credit
Exposure
shall not exceed the total Revolving Facility Commitments and (iii)
the
Alternate Currency L/C Exposure shall not exceed the Alternate
Currency L/C
Sublimit.
(c) Expiration Date.
(i) Each Letter of Credit shall expire at or prior to the close
of
business on the earlier of (i) the date one year after the date of
the issuance
of such Letter of Credit (or, in the case of any renewal or
extension thereof,
one year after such renewal or extension) and (ii) the date that is
five
Business Days prior to the Revolving Facility Maturity Date;
provided that any
Letter of Credit with a one-year tenor may provide for the
automatic renewal
thereof for additional one-year periods (which, in no event, shall
extend beyond
the date referred to in clause (ii) of this paragraph (c) unless
otherwise
agreed by the Issuing Bank and the Administrative Agent).
(ii) If Borrower so requests in any Letter of Credit Request,
the
Issuing Bank may, in its sole and absolute discretion, agree to
issue a Letter
of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter
of Credit"); provided that any such Auto-Renewal Letter of Credit
must permit
the Issuing Bank to prevent any such renewal at least once in each
twelve-month
period (commencing with the date of issuance of such Letter of
Credit) by giving
prior notice to the Borrower and to the beneficiary thereof not
later than a
date in each such twelve-month period to be agreed upon at the time
such Letter
of Credit is issued and to be set forth therein. Unless otherwise
directed by
the Issuing Bank, Borrower shall not be required to make a specific
request to
the Issuing Bank for any such renewal. Once an Auto-Renewal Letter
of Credit has
been issued, the Revolving Lenders shall be deemed to have
authorized (but may
not require) the Issuing Bank to permit the renewal of such Letter
of Credit at
any time to an expiry date not later than the earlier of (i) one
year from the
date of such renewal and (ii) the date that the Letter of Credit
expires;
provided that the Issuing Bank shall not permit any such renewal if
(x) the
Issuing Bank has determined that it would have no obligation at
such time to
issue such Letter of Credit in its renewed form under the terms
hereof, or (y)
it has received notice on or before the day that is two Business
Days before the
date which has been agreed upon pursuant to the proviso of the
first sentence of
this paragraph, (1) from the Administrative Agent that any
Revolving Lender
directly affected thereby has elected not to permit such renewal or
(2) from the
Administrative Agent, any Lender or Borrower that one or more of
the applicable
conditions specified in Section 4.01 are not then satisfied;
provided, further,
that the Issuing Bank or Administrative Agent may require any such
letter of
credit to permit cancellation of such automatic renewal provision
upon at least
90 days' prior written notice.
(d) 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
Revolving
Facility Lenders, such Issuing Bank hereby grants to each Revolving
Facility
Lender, and each Revolving Facility Lender hereby acquires from
such Issuing
Bank, a participation in such Letter of Credit equal to such
Revolving Facility
Lender's Revolving Facility Percentage of the aggregate Dollar
Equivalent amount
available to be drawn under such Letter of Credit. In
consideration
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and in furtherance of the foregoing, each Revolving Facility Lender
hereby
absolutely and unconditionally agrees to pay to the Administrative
Agent, for
the account of the applicable Issuing Bank, such Revolving Facility
Lender's
Revolving Facility Percentage of each L/C Disbursement made by such
Issuing Bank
and not reimbursed by the Borrower on the date due as provided in
paragraph (e)
of this Section, or of any reimbursement payment required to be
refunded to the
Borrower for any reason. Each Revolving Facility Lender
acknowledges and agrees
that its obligation to acquire participations pursuant to this
paragraph in
respect of Letters of Credit is absolute and unconditional and
shall not be
affected by any circumstance whatsoever, including any amendment,
renewal or
extension of any Letter of Credit or the occurrence and continuance
of a Default
or reduction or termination of the Commitments, and that each such
payment shall
be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If
the applicable Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse such
L/C Disbursement by paying to the Administrative Agent an amount
equal to such
L/C Disbursement in the Approved Currency in which the L/C
Disbursement giving
rise to such payment is denominated not later than 2:00 p.m., Local
Time, on (i)
the Business Day that the Borrower receives notice under paragraph
(g) of this
Section of such L/C Disbursement, if such notice is received on
such day prior
to 12:00 noon, Local Time, or (ii) if clause (i) does not apply,
the Business
Day immediately following the date the Borrower receives such
notice; provided
that the Borrower may, subject to the conditions to borrowing set
forth herein,
request in accordance with Section 2.03 or 2.04 that such payment
be financed
with an ABR Revolving Borrowing, in an equivalent amount and, to
the extent so
financed, the Borrower's obligation to make such payment shall be
discharged and
replaced by the resulting ABR Revolving Borrowing. If the Borrower
fails to
reimburse any L/C Disbursement when due, then the Administrative
Agent shall
promptly notify the applicable Issuing Bank and each other
Revolving Facility
Lender of the applicable L/C Disbursement, the payment then due
from the
Borrower in respect thereof and, in the case of a Revolving
Facility Lender,
such Lender's Revolving Facility Percentage thereof. Promptly
following receipt
of such notice, each Revolving Facility Lender shall pay to the
Administrative
Agent its Revolving Facility Percentage of the Dollar Equivalent of
the payment
then due from the Borrower in the same manner as provided in
Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis
mutandis, to the payment obligations of the Revolving Facility
Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing
Bank the
amounts so received by it from the Revolving Facility Lenders.
Promptly
following receipt by the Administrative Agent of any payment from
the Borrower
pursuant to this paragraph, the Administrative Agent shall
distribute such
payment to the applicable Issuing Bank or, to the extent that
Revolving Facility
Lenders have made payments pursuant to this paragraph to reimburse
such Issuing
Bank, then to such Lenders and such Issuing Bank as their interests
may appear;
provided that, in the case of Alternate Currency Letters of Credit,
payment to
such Lenders shall be in the Dollar Equivalent of the amount of the
payment. Any
payment made by a Revolving Facility Lender pursuant to this
paragraph to
reimburse an Issuing Bank for any L/C Disbursement (other than the
funding of an
ABR Revolving Loan or a Swingline Borrowing as contemplated above)
shall not
constitute a Loan and shall not relieve the Borrower of its
obligation to
reimburse such L/C Disbursement.
(f) Obligations Absolute. The obligation of the Borrower to
reimburse
L/C Disbursements as provided in paragraph (e) of this Section
shall be
absolute, unconditional and irrevocable, and shall be performed
strictly in
accordance with the terms of this Agreement under any and all
circumstances
whatsoever and irrespective of (i) any lack of validity or
enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any
draft or other document presented under a Letter of Credit proving
to be forged,
fraudulent or invalid in any respect or any statement therein being
untrue or
inaccurate in any respect, (iii) payment by the applicable Issuing
Bank under a
Letter of Credit against presentation of a draft or other document
that does not
comply with the terms of such Letter of Credit or (iv) any other
event or
circumstance whatsoever, whether or not similar to any of the
foregoing, that
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<PAGE>
might, but for the provisions of this Section, constitute a legal
or equitable
discharge of, or provide a right of setoff against, the Borrower's
obligations
hereunder. Neither the Administrative Agent, the Lenders nor any
Issuing Bank,
nor any of their Related Parties, shall have any liability or
responsibility by
reason of or in connection with the issuance or transfer of any
Letter of Credit
or any payment or failure to make any payment thereunder
(irrespective of any of
the circumstances referred to in the preceding sentence), or any
error,
omission, interruption, loss or delay in transmission or delivery
of any draft,
notice or other communication under or relating to any Letter of
Credit
(including any document required to make a drawing thereunder), any
error in
interpretation of technical terms or any consequence arising from
causes beyond
the control of such Issuing Bank, or any of the circumstances
referred to in
clause (i), (ii) or (iii) of the first sentence; provided that the
foregoing
shall not be construed to excuse the applicable Issuing Bank from
liability to
the Borrower to the extent of any direct damages (as opposed to
consequential or
punitive damages, claims in respect of which are hereby waived by
the Borrower
to the extent permitted by applicable law) suffered by the Borrower
that are
determined by a court of competent jurisdiction to have been caused
by (i) such
Issuing Bank's failure to exercise care when determining whether
drafts and
other documents presented under a Letter of Credit comply with the
terms thereof
or (ii) such Issuing Bank's failure to exercise care when refusing
to issue a
Letter of Credit in accordance with the terms of this Agreement.
The parties
hereto expressly agree that, in the absence of gross negligence or
willful
misconduct on the part of the applicable Issuing Bank, such Issuing
Bank shall
be deemed to have exercised care in each such determination and
each refusal to
issue a Letter of Credit. In furtherance of the foregoing and
without limiting
the generality thereof, the parties agree that, with respect to
documents
presented which appear on their face to be in substantial
compliance with the
terms of a Letter of Credit, the applicable Issuing Bank may, in
its sole
discretion, either accept and make payment upon such documents
without
responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment
upon such
documents if such documents are not in strict compliance with the
terms of such
Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to
represent a demand for payment under a Letter of Credit. Such
Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by
telephone
(confirmed by telecopy) of such demand for payment and whether such
Issuing Bank
has made or will make a L/C Disbursement thereunder; provided that
any failure
to give or delay in giving such notice shall not relieve the
Borrower of its
obligation to reimburse such Issuing Bank and the Revolving
Facility Lenders
with respect to any such L/C Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any L/C
Disbursement, then, unless the Borrower shall reimburse such L/C
Disbursement in
full on the date such L/C Disbursement is made, the unpaid amount
thereof shall
bear interest, for each day from and including the date such L/C
Disbursement is
made to but excluding the date that the Borrower reimburses such
L/C
Disbursement, at the rate per annum then applicable to ABR
Revolving Loans;
provided that, if such L/C Disbursement is not reimbursed by the
Borrower when
due pursuant to paragraph (e) of this Section, then Section 2.13(c)
shall apply.
Interest accrued pursuant to this paragraph shall be for the
account of the
applicable Issuing Bank, except that interest accrued on and after
the date of
payment by any Revolving Facility Lender pursuant to paragraph (e)
of this
Section to reimburse such Issuing Bank shall be for the account of
such
Revolving Facility Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. An Issuing Bank may be replaced
at
any time by written agreement among the Borrower, the
Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent
shall notify the Lenders of any such replacement of an Issuing
Bank. At the time
any such replacement shall become effective, the Borrower shall pay
all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant
to Section
2.12. From and after
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<PAGE>
the effective date of any such replacement, (i) the successor
Issuing Bank shall
have all the rights and obligations of the replaced Issuing Bank
under this
Agreement with respect to Letters of Credit to be issued thereafter
and (ii)
references herein to the term "Issuing Bank" shall be deemed to
refer to such
successor or to any previous Issuing Bank, or to such successor and
all previous
Issuing Banks, as the context shall require. After the replacement
of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall
continue to have all the rights and obligations of such Issuing
Bank under this
Agreement with respect to Letters of Credit issued by it prior to
such
replacement but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be
continuing, (i) in the case of an Event of Default described in
Section 7.01(h)
or (i), on the Business Day or (ii) in the case of any other Event
of Default
(subject to Section 7.01), on the third Business Day, in each case,
following
the date on which the Borrower receives notice from the
Administrative Agent
(or, if the maturity of the Loans has been accelerated, Revolving
Facility
Lenders with Revolving L/C Exposure representing greater than 50%
of the total
Revolving L/C Exposure) demanding the deposit of cash collateral
pursuant to
this paragraph, the Borrower shall deposit in an account with the
Administrative
Agent, in the name of the Administrative Agent and for the benefit
of the
Lenders, an amount in cash equal to the Revolving L/C Exposure as
of such date
plus any accrued and unpaid interest thereon; provided that upon
the occurrence
of any Event of Default with respect to the Borrower described in
clause (h) or
(i) of Section 7.01, the obligation to deposit such cash collateral
shall become
effective immediately, and such deposit shall become immediately
due and
payable, without demand or other notice of any kind. Each such
deposit pursuant
to this paragraph shall be held by the Administrative Agent as
collateral for
the payment and performance of the obligations of the Borrower
under this
Agreement. The Administrative Agent shall have exclusive dominion
and control,
including the exclusive right of withdrawal, over such account.
Other than any
interest earned on the investment of such deposits, which
investments shall be
made at the option and sole discretion of (i) for so long as an
Event of Default
shall be continuing, the Administrative Agent and (ii) at any other
time, the
Borrower, in each case, in Permitted Investments and at the risk
and expense of
the Borrower, such deposits shall not bear interest. Interest or
profits, if
any, on such investments shall accumulate in such account. Moneys
in such
account shall be applied by the Administrative Agent to reimburse
each Issuing
Bank for L/C Disbursements for which such Issuing Bank has not been
reimbursed
and, to the extent not so applied, shall be held for the
satisfaction of the
reimbursement obligations of the Borrower for the Revolving L/C
Exposure at such
time or, if the maturity of the Loans has been accelerated (but
subject to the
consent of Revolving Facility Lenders with Revolving L/C Exposure
representing
greater than 50% of the total Revolving L/C Exposure), be applied
to satisfy
other obligations of the Borrower under this Agreement. If the
Borrower is
required to provide an amount of cash collateral hereunder as a
result of the
occurrence of an Event of Default, such amount (to the extent not
applied as
aforesaid) shall be returned to the Borrower within three Business
Days after
all Events of Default have been cured or waived.
(k) Additional Issuing Banks. From time to time, the Borrower may
by
notice to the Administrative Agent designate up to three Lenders
(in addition to
UBS AG, Stamford Branch) each of which agrees (in its sole
discretion) to act in
such capacity and is reasonably satisfactory to the Administrative
Agent as an
Issuing Bank. Each such additional Issuing Bank shall execute a
counterpart of
this Agreement upon the approval of the Administrative Agent (which
approval
shall not be unreasonably withheld) and shall thereafter be an
Issuing Bank
hereunder for all purposes.
(l) Reporting. Unless otherwise requested by the Administrative
Agent,
each Issuing Bank shall (i) provide to the Administrative Agent
copies of any
notice received from the Borrower pursuant to Section 2.05(b) no
later than the
next Business Day after receipt thereof and (ii) report in writing
to the
Administrative Agent (A) on or prior to each Business Day on which
such Issuing
Bank expects
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<PAGE>
to issue, amend, renew or extend any Letter of Credit, the date of
such
issuance, amendment, renewal or extension, and the aggregate face
amount of the
Letters of Credit to be issued, amended, renewed or extended by it
and
outstanding after giving effect to such issuance, amendment,
renewal or
extension occurred (and whether the amount thereof changed), and
the Issuing
Bank shall be permitted to issue, amend, renew or extend such
Letter of Credit
if the Administrative Agent shall not have advised the Issuing Bank
that such
issuance, amendment renewal or extension would not be in conformity
with the
requirements of this Agreement, (B) on each Business Day on which
such Issuing
Bank makes any L/C Disbursement, the date of such L/C Disbursement
and the
amount of such L/C Disbursement and (C) on any other Business Day,
such other
information as the Administrative Agent shall reasonably request,
including but
not limited to prompt verification of such information as may be
requested by
the Administrative Agent.
SECTION 2.06. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on
the
proposed date thereof by wire transfer of immediately available
funds by 12:00
noon, Local Time, to the account of the Administrative Agent most
recently
designated by it for such purpose by notice to the Lenders;
provided that
Swingline Loans shall be made as provided in Section 2.04. The
Administrative
Agent will make such Loans available to the Borrower by promptly
crediting the
amounts so received, in like funds, to an account of the Borrower
maintained
with the Administrative Agent in New York City; provided that ABR
Revolving
Loans and Swingline Borrowings made to finance the reimbursement of
a L/C
Disbursement and reimbursements as provided in Section 2.05(e)
shall be remitted
by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a
Lender prior to the proposed date of any Borrowing that such Lender
will not
make available to the Administrative Agent such Lender's share of
such
Borrowing, the Administrative Agent may assume that such Lender has
made such
share available on such date in accordance with paragraph (a) of
this Section
and may, in reliance upon such assumption, make available to the
Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share
of the applicable Borrowing available to the Administrative Agent,
then the
applicable Lender and the Borrower severally agree to pay to the
Administrative
Agent forthwith on demand (without duplication) such corresponding
amount with
interest thereon, for each day from and including the date such
amount is made
available to the Borrower to but excluding the date of payment to
the
Administrative Agent, at (i) in the case of such Lender, the
Federal Funds
Effective Rate and a rate determined by the Administrative Agent in
accordance
with banking industry rules on interbank compensation or (ii) in
the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such
amount to the Administrative Agent, then such amount shall
constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the
applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall
have an initial Interest Period as specified in such Borrowing
Request.
Thereafter, the Borrower may elect to convert such Borrowing to a
different Type
or to continue such Borrowing and, in the case of a Eurocurrency
Borrowing, may
elect Interest Periods therefor, all as provided in this Section.
The Borrower
may elect different options with respect to different portions of
the affected
Borrowing, in which case each such portion shall be allocated
ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans
comprising
each such portion shall be considered a separate Borrowing. This
Section shall
not apply to Swingline Borrowings, which may not be converted or
continued.
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<PAGE>
(b) To make an election pursuant to this Section, the Borrower
shall
notify the Administrative Agent of such election by telephone by
the time that a
Borrowing Request would be required under Section 2.03 if the
Borrower were
requesting a Borrowing of the Type resulting from such election to
be made on
the effective date of such election. Each such telephonic Interest
Election
Request shall be irrevocable and shall be confirmed promptly (but
in any event
on the same Business Day) by hand delivery or telecopy to the
Administrative
Agent of a written Interest Election Request in a form approved by
the
Administrative Agent and signed by such Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section
2.02:
(i) the Borrowing to which such Interest Election Request applies
and,
if
different options are being elected with respect to different
portions
thereof, the portions thereof to be allocated to each resulting
Borrowing
(in
which case the information to be specified pursuant to clauses
(iii)
and
(iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the
Interest Period to be applicable thereto after giving effect to
such
election, which shall be a period contemplated by clause (a) of
the
definition of the term "Interest Period."
If any such Interest Election Request requests a Eurocurrency
Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed
to have
selected an Interest Period of one month'
