CREDIT AGREEMENT

EXHIBIT 10.4

 

 

Execution Version

Published CUSIP Number: 109698AA8

Revolving A Credit Facility CUSIP Number: 109698AB6

Revolving B Credit Facility CUSIP Number: 109698AC4

 

 

$400,000,000

CREDIT AGREEMENT

among

THE BRINK’S COMPANY,

as Parent Borrower,

THE SUBSIDIARY BORROWERS REFERRED TO HEREIN,

CERTAIN OF PARENT BORROWER’S SUBSIDIARIES,

as Guarantors,

VARIOUS LENDERS,

BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY,

as Documentation Agent,

BANK OF AMERICA, N.A.

and

JPMORGAN CHASE BANK, N.A.,

as Syndication Agents,

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, an Issuing Lender and Swingline Lender

Dated as of August 11, 2006

WACHOVIA CAPITAL MARKETS, LLC and J.P. MORGAN SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners

 

 

TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS, ETC.

Section 1.1	Definitions.	1
Section 1.2	General.	25
Section 1.3	Other Definitions and Provisions.	25
Section 1.4	Accounting Terms.	25
Section 1.5	Redenomination of Certain Foreign Currencies and Computation of Dollar Equivalents.	26

ARTICLE II

CREDIT FACILITIES

Section 2.1	Amount and Terms of Credit.	27
Section 2.2	Procedure for Advances of Revolving Credit Loans.	28
Section 2.3	Conversion and Continuation of Revolving Credit Loans	30
Section 2.4	Repayment of Loans.	31
Section 2.5	Competitive Bid Loans and Procedures.	32
Section 2.6	Swingline Loans.	37
Section 2.7	Termination of Commitments	39
Section 2.8	Commitment Reductions	39
Section 2.9	Commitment Increase.	39
Section 2.10	New Class of Commitments	40
Section 2.11	Addition or Removal of Foreign Subsidiary Borrowers; Optional Currencies.	41
Section 2.12	Parent Borrower as Agent for Subsidiary Borrowers.	43

ARTICLE III

LETTER OF CREDIT FACILITY

Section 3.1	L/C Commitment.	44
Section 3.2	Procedure for Issuance of Letters of Credit.	45
Section 3.3	Fees and Other Charges.	46
Section 3.4	L/C Participations.	47
Section 3.5	Reimbursement Obligation of the Revolving Borrowers.	48
Section 3.6	Obligations Absolute.	49
Section 3.7	Letter of Credit Payments.	49
Section 3.8	Effect of L/C Application.	50

ARTICLE IV

GENERAL LOAN PROVISIONS

Section 4.1	Interest and Utilization Fee.	50
Section 4.2	Facility Fee.	52
Section 4.3	Pro Rata Treatment: Manner of Payment.	53
Section 4.4	Crediting of Payments and Proceeds.	53
Section 4.5	Adjustments.	54
Section 4.6	Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent.	54
Section 4.7	Changed Circumstances; Illegality.	55
Section 4.8	Indemnity.	60
Section 4.9	Capital Requirements.	60
Section 4.10	Taxes.	61

ARTICLE V

CONDITIONS OF CLOSING AND BORROWING

Section 5.1	Conditions to Closing.	64
Section 5.2	Conditions to All Extensions of Credit.	67
Section 5.3	Initial Extension of Credit to Each New Foreign Subsidiary Borrower.	68

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

Section 6.1	Representations and Warranties.	68
Section 6.2	Accuracy and Completeness of Information.	73
Section 6.3	Labor Matters.	74
Section 6.4	Survival of Representations and Warranties. Etc.	74

ARTICLE VII

FINANCIAL INFORMATION AND NOTICES

Section 7.1	Financial Statements. Etc.	74
Section 7.2	Notice of Litigation and Other Matters.	77

ARTICLE VIII

AFFIRMATIVE COVENANTS

Section 8.1	Payment of Taxes. etc.	78
Section 8.2	Maintenance of Insurance.	78
Section 8.3	Preservation of Corporate Existence, etc.	78
Section 8.4	Compliance with Laws, etc.	79

Section 8.5	Compliance with ERISA and the Code.	79
Section 8.6	Compliance with Contracts, etc.	79
Section 8.7	Access to Properties.	79
Section 8.8	Conduct of Business.	79
Section 8.9	Use of Proceeds.	79
Section 8.10	Additional Guarantors.	80

ARTICLE IX

NEGATIVE COVENANTS

Section 9.1	Financial Covenants.	80
Section 9.2	Limitations on Liens.	80
Section 9.3	Disposition of Debt and Shares of Restricted Subsidiaries: Issuance of Shares by Restricted Subsidiaries: Consolidation. Merger or Disposition of Assets.	82
Section 9.4	Transactions with Affiliates.	83
Section 9.5	Compliance with Regulations T, U and X.	83
Section 9.6	Hedging Agreements.	83
Section 9.7	ERISA.	84
Section 9.8	Limitations on Acquisitions	84
Section 9.9	Sale Leaseback Transactions.	84
Section 9.10	Limitations on Investments.	85

ARTICLE X

GUARANTY

Section 10.1	Guaranty of Payment.	86
Section 10.2	Obligations Unconditional.	86
Section 10.3	Modifications.	87
Section 10.4	Waiver of Rights.	87
Section 10.5	Reinstatement.	88
Section 10.6	Remedies.	88
Section 10.7	Subrogation	88
Section 10.8	Limitation of Guaranty.	88
Section 10.9	Termination of Guaranty Upon Divestiture.	88

ARTICLE XI

DEFAULT AND REMEDIES

Section 11.1	Events of Default.	89
Section 11.2	Remedies.	92
Section 11.3	Rights and Remedies Cumulative; Non-Waiver; etc.	93

ARTICLE XII

THE AGENTS

Section 12.1	Appointment.	94
Section 12.2	Delegation of Duties.	94
Section 12.3	Exculpatory Provisions.	94
Section 12.4	Reliance by the Agents.	95
Section 12.5	Notice of Default.	95
Section 12.6	Non-Reliance on the Agents and Other Lenders.	95
Section 12.7	Indemnification.	96
Section 12.8	The Administrative Agent in Its Individual Capacity.	96
Section 12.9	Resignation of Agents: Successor Agents.	97
Section 12.10	Co-Arrangers; Syndication Agents; Documentation Agent.	97
Section 12.11	Issuing Lender and Swingline Lender	97

ARTICLE XIII

MISCELLANEOUS

Section 13.1	Notices.	97
Section 13.2	Expenses, Indemnity.	99
Section 13.3	GOVERNING LAW.	100
Section 13.4	Consent to Jurisdiction; Waiver.	100
Section 13.5	WAIVER OF JURY TRIAL.	101
Section 13.6	Reversal of Payments.	101
Section 13.7	Accounting Matters.	101
Section 13.8	Successors and Assigns; Participations; Confidentiality.	101
Section 13.9	Disclosure of Information; Confidentiality.	106
Section 13.10	Amendments, Waivers and Consents.	106
Section 13.11	Performance of Duties.	107
Section 13.12	All Powers Coupled with Interest.	107
Section 13.13	Acknowledgements.	107
Section 13.14	Survival of Indemnities.	108
Section 13.15	Titles and Captions.	108
Section 13.16	Severability of Provisions.	108
Section 13.17	Counterparts.	108
Section 13.18	Binding Effect; Amendment and Restatement; Term of Agreement.	108
Section 13.19	Inconsistencies with Other Documents; Independent Effect of Covenants.	109
Section 13.20	Integration.	109
Section 13.21	Judgment Currency.	109
Section 13.22	USA Patriot Act Notice	110

 

 

CREDIT AGREEMENT dated as of August 11, 2006 among THE BRINK’S COMPANY, a Virginia corporation (the “ Parent Borrower ”), certain of the Parent Borrower’s Subsidiaries named on the signature pages hereto or that may hereafter become a party hereto pursuant to Section 2.11 , the Lenders from time to time party hereto, BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as Documentation Agent (in such capacity, the “ Documentation Agent ”), BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A., as Syndication Agents (in such capacity, the “ Syndication Agents ”) and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, an Issuing Lender and Swingline Lender (all capitalized terms used herein and defined in Section 1.1 are used herein as therein defined).

STATEMENT OF PURPOSE

WHEREAS, the Parent Borrower is a party to an existing $400,000,000 credit agreement (the “ Existing Credit Agreement ”), dated as of October 15, 2004, among the Parent Borrower, certain of its subsidiaries, various lenders and the agents named therein;

WHEREAS, the Parent Borrower intends to refinance the Existing Credit Agreement (the “ Refinancing ”); and

WHEREAS, to facilitate the Refinancing, and to finance its working capital needs, capital expenditures, acquisitions and for all other general corporate purposes, the Parent Borrower and the Foreign Subsidiary Borrowers wish to establish with the Lenders credit facilities providing for revolving loans and letters of credit of up to $400,000,000 in the aggregate maximum principal amount at any time outstanding, and the Lenders and the Administrative Agent are willing to establish such credit facilities on the terms and conditions set forth herein;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

ARTICLE I

DEFINITIONS, ETC.

The following terms when used in this Agreement shall have the meanings assigned to them below:

“ Administrative Agent ” means Wachovia Bank, National Association in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 12.9 .  It is understood that matters concerning Foreign Currency Loans will be administered by the applicable Multicurrency Agent.

“ Administrative Questionnaire ” means an administrative questionnaire in the form furnished by the Administrative Agent.

 

 

“ Affiliate ” means, with respect to any Person, any other Person (other than a Subsidiary) which directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person or any of its Subsidiaries.  The term “control” means the possession, directly or indirectly, of any power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

“ Agents ” means, collectively, the Multicurrency Agents and the Administrative Agent.

“ Aggregate Commitment ” means the sum of the Aggregate Revolving A Commitment, the Aggregate Revolving B Commitment and the new Class of Commitment established pursuant to Section 2.10 .

“ Aggregate Credit Exposure ” means the sum of the Aggregate Revolving A Credit Exposure and the Aggregate Revolving B Credit Exposure.

“ Aggregate L/C Obligations ” means at any time, an amount equal to the Dollar Equivalent of the sum of (a) the aggregate undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 3.5 .

“ Aggregate L/C Sublimit ” means $300,000,000.

“ Aggregate Revolving A Commitment ” means the aggregate Revolving A Commitment of all Revolving A Lenders to make Revolving A Credit Loans and participate in Revolving A Letters of Credit and Swingline Loans, as such amount may be reduced or increased at any time or from time to time pursuant to the terms hereof.  The Aggregate Revolving A Commitment on the Closing Date shall be $315,000,000.

“ Aggregate Revolving A Credit Exposure ” means the aggregate Revolving A Credit Exposure of all Revolving A Lenders.

“ Aggregate Revolving B Commitment ” means the aggregate Revolving B Commitment of all Revolving B Lenders to make Revolving B Credit Loans and participate in Revolving B Letters of Credit, as such amount may be reduced or increased at any time or from time to time pursuant to the terms hereof.  The Aggregate Revolving B Commitment on the Closing Date shall be $85,000,000.

“ Aggregate Revolving B Credit Exposure ” means the aggregate Revolving B Credit Exposure of all Revolving B Lenders.

“ Agreement ” means this Credit Agreement, as amended, restated, supplemented or otherwise modified.

“ Alternate Base Rate ” means, at any time, for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds Rate in effect on such day plus ½ of 1%.  For purposes hereof, “ Prime Rate ” means the rate of interest per annum publicly announced from

 

 

time to time by Wachovia as its prime rate in effect at its principal office in Charlotte, North Carolina (the Prime Rate not necessarily being intended to be the lowest rate of interest charged by Wachovia in connection with extensions of credit to debtors); Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Rate, respectively.

“ Alternate Base Rate Loan ” means any Loan bearing interest at a rate based upon the Alternate Base Rate.

“ Applicable Law ” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.

“ Applicable LT Rating ” means (i) as to Moody’s, its rating of the Parent Borrower’s senior, unsecured, long-term, non-credit-enhanced debt for borrowed money and (ii) as to S&P, its corporate family rating of the Parent Borrower’s senior, unsecured, long-term, non-credit-enhanced debt for borrowed money.

“ Applicable Percentage ” means, for purposes of calculating (a) the interest rate applicable to Eurocurrency Rate Loans under Section 4.1.1(a) ; (b) the interest rate applicable to Alternate Base Rate Loans under Section 4.1.1(a) ; (c) the Utilization Fee under Section 4.1.6 ; or (d) the Facility Fee under Section 4.2 , the applicable percentage set forth in the following tables opposite the Applicable LT Rating:

For purposes of the foregoing, (i) if the Applicable LT Ratings established by Moody’s and S&P are different but correspond to consecutive Pricing Levels, then the pricing will be based on the higher Applicable LT Rating (e.g., if Moody’s Applicable LT Rating corresponds to Level I and S&P’s Applicable LT Rating corresponds to Level II, then the pricing will be based on Level I), and (ii) if the Applicable LT Ratings established by Moody’s and S&P are more than one Pricing Level apart, then the pricing will be based on the rating which is one level higher than the lower rating (e.g., if Moody’s and S&P’s Applicable LT Ratings correspond to Pricing Levels I and IV, respectively, then the pricing will be based on Pricing Level III).  As of the Closing Date, the Applicable Percentage will be based on Level III.

 

 

The Applicable Percentage shall be adjusted on the date five (5) Business Days after the date of any change in the Applicable LT Ratings (each such adjustment date a “ Rate Determination Date ”).  Each Applicable Percentage shall be effective from a Rate Determination Date until the next such Rate Determination Date.  Adjustments in the Applicable Percentages shall be effective as to existing Extensions of Credit as well as any new Extension of Credit made thereafter.

“ Approved Fund ” has the meaning assigned thereto in Section 13.8.2 .

“ Arrangers ” means Wachovia Capital Markets, LLC and J.P. Morgan Securities Inc., in their capacity as joint lead arrangers and joint bookrunners under this Agreement.

“ Assignee ” has the meaning assigned thereto in Section 13.8.2 .

“ Assignment and Assumption ” means an Assignment and Assumption, substantially in the form of Exhibit H .

“ Bankruptcy Code ” means 11 U.S.C. §§ 101 et seq ., as amended from time to time, and any successor statute.

“ Bankruptcy Event ” means any of the Events of Default set forth in Sections 11.1.8 , 11.1.9 or 11.1.10 , or any of those events which with the passage of time, the giving of notice or any other condition, would constitute such an Event of Default.

“ Benefited Lender ” has the meaning assigned thereto in Section 4.5 .

“ Board ” means the Board of Governors of the Federal Reserve System of the United States (or any successor thereof).

“ Borrowers ” means the Parent Borrower and the Foreign Subsidiary Borrowers; “ Borrower ” means any one of them.

“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York City or Charlotte, North Carolina   are authorized or required by law to close; provided that (a) with respect to any borrowings, disbursements and payments in respect of and calculations, interest rates and Interest Periods pertaining to Eurocurrency Rate Loans, Letters of Credit or Swingline Loans denominated in Euros, Sterling or any Optional Currency, such day is also a day on which banks are open for general business in the principal financial center of the country of the relevant currency and in the London interbank market, (b) with respect to notices and determinations in connection with, and payments of principal and interest on, Loans denominated in Euros, such day is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) is open for settlement of payment in Euros and (c) when used in connection with a Loan denominated in Canadian Dollars or made to a Subsidiary Borrower that is incorporated or otherwise organized under the laws of Canada or any political subdivision thereof, such day is also a day on which banks are open for dealings in deposits in Canadian Dollars in both Toronto and Montreal.

 

 

“ Capital Lease ” means, with respect to any Person who is a lessee of property, any lease of any property that should, in accordance with GAAP, be classified and accounted for as a capital lease on the lessee’s balance sheet.

“ Capital Lease Obligation ” means the amount of the liability that is capitalized in respect of any Capital Lease in accordance with GAAP.

“ Cash Collateral Account ” has the meaning assigned thereto in Section 11.2.2(a) .

“ Cash Equivalents ” means (a) demand deposits maintained in the ordinary course of business, (b) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof ( provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (c) time deposits, certificates of deposit, master notes and bankers acceptances of (i) any Lender, (ii) any commercial bank or trust company (or any Affiliate thereof) having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof or from Moody’s is at least P-2 or the equivalent thereof (any such bank, trust company or Affiliate thereof being an “ Approved Institution ”), in each case with maturities of not more than 270 days from the date of acquisition, (d) commercial paper and variable or fixed rate notes issued by any Approved Institution (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-2 (or similar ratings by successor rating agencies) or better by S&P or P-2 (or similar ratings by successor rating agencies) or better by Moody’s and maturing within six months of the date of acquisition, (e) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (f) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by Approved Institutions, (g) obligations of states, municipalities, counties, political subdivisions, agencies of the foregoing and other similar entities, rated at least A, MIG-1 or MIG-2 by Moody’s or at least A by S&P (or similar ratings by successor rating agencies), (h) unrated obligations of states, municipalities, counties, political subdivisions, agencies of the foregoing and other similar entities, supported by irrevocable letters of credit issued by Approved Institutions, or (i) unrated general obligations of states, municipalities, counties, political subdivisions, agencies of the foregoing and other similar entities, provided that the issuer has other outstanding general obligations rated at least A, MIG-1 or MIG-2 by Moody’s or A by S&P (or similar ratings by successor rating agencies).

“ Change in Control ” shall be deemed to have occurred if (i) any person or group of persons (within the meaning of Section 13(d) of the Securities Exchange Act, as amended) shall obtain, directly or indirectly, beneficially or of record, ownership or control in one or more series of transactions of shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Parent Borrower, provided that such person or group of persons shall be deemed to have obtained such ownership or control on

 

 

the date thirty days after the date that such person or group of persons actually obtains such ownership or control, (ii) a majority of the seats on the board of directors of the Parent Borrower shall be occupied by persons other than (x) directors on the date of this Agreement or (y) directors initially nominated or appointed by action of the board of directors of the Parent Borrower or (iii) there shall have occurred under any indenture or other instrument evidencing Debt of the Parent Borrower or any Restricted Subsidiary for borrowed money in excess of $25,000,000 a “change in control” (as defined in such indenture or other instrument evidencing such Debt) beyond any grace period permitted therein obligating the Parent Borrower or any Restricted Subsidiary to repurchase, redeem or repay all or any part of such Debt or any capital stock provided for therein.

“ Class ” when used in reference to any Loan, refers to whether such Loan, is a Revolving A Credit Loan, Revolving B Credit Loan, Competitive Bid Loan, Swingline Loan or a Loan made under Commitments established pursuant to Section 2.10  and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving A Commitment, a Revolving B Commitment or a Commitment established pursuant to Section 2.10 .

“ Closing Date ” has the meaning assigned thereto in Section 5.1 .

“ Code ” means the Internal Revenue Code of 1986, and the rules and regulations thereunder, each as amended, supplemented or otherwise modified from time to time.

“ Commitment ” means, (i) as to any Lender, the Revolving A Commitment and/or the Revolving B Commitment of such Lender, or a Commitment established pursuant to Section 2.10, (ii) as to any Issuing Lender, its L/C Commitment and (iii) as to the Swingline Lender, its Swingline Commitment.

“ Commitment Increase Notice ” has the meaning assigned thereto in Section 2.9.1 .

“ Commitment Increase Supplement ” means a Commitment Increase Supplement executed by any Lender, the Parent Borrower and the Administrative Agent, substantially in the form of Exhibit E , pursuant to Section 2.9.3 .

“ Competitive Bid Foreign Subsidiary Borrowers ” has the meaning assigned thereto in Section 2.11.2(a) .

“ Competitive Bid Loan ” means any Dollar Competitive Bid Loan made pursuant to Section 2.5.1 and any Foreign Currency Competitive Bid Loan made pursuant to Section 2.5.2 .

“ Conduit Lender ” means 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 amount pursuant to Sections 4.7 , 4.8 , 4.9 , 4.10 or 13.2 that would be

 

 

greater than the amount that 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.

“ Confidential Information Memorandum ” means the Confidential Information Memorandum dated July 2006 and furnished to certain Lenders.

“ Consolidated Debt ” means Debt of the Parent Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in Restricted Subsidiaries.

“ Consolidated EBITDA ” means, for the Parent Borrower and its Restricted Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net Income for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation, depletion and amortization, and (iv) all other non-cash charges, determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries.

“ Consolidated Interest Expense ” means, for any period, as applied to the Parent Borrower and its Restricted Subsidiaries, all interest expense (whether paid or accrued) and capitalized interest, including without limitation (a) the amortization of debt discount and premium, (b) the interest component under Capital Leases, and (c) the implied interest component, discount or other similar fees or charges in connection with any asset securitization program in each case determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries.

“ Consolidated Lease Rentals ” means Lease Rentals of the Parent Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries.

“ Consolidated Net Income ” means, for any period, the net income, after taxes, of the Parent Borrower and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries, but excluding, to the extent reflected in determining such net income, (a) any extraordinary gains and losses for such period, (b) any non-cash impairment, valuation allowance, write-down or write-off in the book value of any assets and (c) any non-cash loss in connection with the disposition of any assets.

“ Consolidated Net Worth ” means, as of any date, as applied to the Parent Borrower and its Restricted Subsidiaries, shareholders’ equity or net worth as determined and computed on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries, provided that in determining “Consolidated Net Worth” there shall be (a) included any issuance of preferred stock by the Parent Borrower and (b) excluded (i) any extraordinary gains and losses, (ii) any non-cash impairment, valuation allowance, write-down or write-off in the book value of any assets, (iii) any non-cash loss in connection with the disposition of any assets and (iv) any other comprehensive income (loss)

 

 

associated with pension plans or postretirement benefit plans other than pensions; provided further , that the items referred to in clauses (i), (ii), (iii) and (iv), shall be excluded only to the extent that such items are recorded following the date hereof.

“ Consolidated Total Assets ” means, as of any date, the assets and properties of the Parent Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP after giving appropriate effect to any outside minority interests in the Restricted Subsidiaries.

“ Contaminant ” means any waste, hazardous material, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste that is regulated under any Environmental Law.

“ Credit Facilities ” means, collectively, the Revolving A Credit Facility, the Revolving B Credit Facility and the L/C Facility or any of them, as the context requires.

“ Credit Parties ” means, collectively, the Parent Borrower, the Foreign Subsidiary Borrowers and the Guarantors; “ Credit Party ” means any one of them.

“ Current SEC Reports ” means the most recent report on Form 10-K, or any successor form, and any amendments thereto filed by the Parent Borrower with the Securities and Exchange Commission (the “ Commission ”) and any reports on Forms 10-Q and/or 8-K, or any successor forms, and any amendments thereto, filed by the Parent Borrower with the Commission after the date of such report on Form 10-K.

“ CUSIP Bureau ” means the Standard & Poor’s CUSIP Service Bureau.

“ Debt ” of any Person means at any date, without duplication, the sum of the following determined and calculated in accordance with GAAP:  (a) all obligations of such Person for borrowed money, (b) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (c) all Debt of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, provided that for purposes hereof the amount of such Debt shall be calculated at the greater of (i) the amount of such Debt as to which there is recourse to such Person and (ii) the fair market value of the property which is subject to the Lien, (d) all Support Obligations of such Person with respect to Debt of others, (e) the principal portion of all obligations of such Person under Capital Leases, (f) the maximum amount of all drafts drawn under standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person (to the extent unreimbursed), and (g) the outstanding attributed principal amount under any asset securitization program of such Person.  The Debt of any Person shall include the Debt of any partnership or joint venture in which such Person is a general partner or a joint venturer, but only to the extent to which there is recourse to such Person for payment of such Debt.

 

 

“ Debtor Relief Laws ” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, administration, extraordinary administration or similar debtor relief laws of the United States or other applicable jurisdictions (U.S. domestic or foreign) from time to time in effect and affecting the rights of creditors generally.

“ Default ” means any of the events specified in Section 11.1 which with the passage of time, the giving of notice or both, would constitute an Event of Default.

“ Defaulting Lender ” means at any time any Lender that, within one Business Day of when due, (i) has failed to make a Loan or purchase a Participation Interest in a Swingline Loan or L/C Obligation required pursuant to the terms of this Agreement, (ii) other than as set forth in clause (i) above, has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this Agreement or any other Loan Document unless such amount is subject to a good faith dispute or (iii) has been deemed insolvent or has become subject to a Bankruptcy Event.

“ Documentation Agent ” has the meaning assigned thereto in the recitals hereto.

“ Dollar Competitive Bid ” means an offer by a Lender to make a Dollar Competitive Bid Loan in accordance with Section 2.5.1 .

“ Dollar Competitive Bid Loan ” means any Loan denominated in Dollars made pursuant to Section 2.5.1 .

“ Dollar Competitive Bid Rate ” means the rate of interest per annum expressed as a percentage rate in the form of a decimal to no more than four decimal places offered by a Lender making a Dollar Competitive Bid with respect to any Dollar Competitive Bid Loan.

“ Dollar Equivalent ” means, on any Business Day with respect to any amount denominated in Euros, Sterling or any Optional Currency, the amount of Dollars that would be required to purchase the amount of such currency based upon the spot selling rate at which the Multicurrency Agent offers to sell such currency for Dollars in the London foreign exchange market at approximately 11:00 a.m. London time on such Business Day for delivery two Business Days later, and, with respect to any amount denominated in Dollars, such amount.

“ Dollar Eurocurrency Rate Loans ” means Eurocurrency Rate Loans denominated in Dollars.

“ Dollar Revolving Loan ” means any Revolving Credit Loan denominated in Dollars.

“ Dollars ” or “ $ ” means, unless otherwise qualified, dollars in lawful currency of the United States.

“ EMU Legislation ” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

 

 

“ Environmental Laws ” means any and all federal, state, local and foreign laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, binding interpretations and orders of courts or Governmental Authorities, relating to the protection of human health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder, each as amended, supplemented or otherwise modified from time to time.

“ ERISA Affiliate ” means any Person who together with the Parent Borrower is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

“ Euro ” or “ € ” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.

“ Eurocurrency Base Rate ” means with respect to each day during each Interest Period pertaining to a Eurocurrency Rate Loan, the rate per annum determined on the basis of the rate for deposits in the relevant currency for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Telerate Page 3750 (or any successor page), or with respect to any Eurocurrency Rate Loan denominated in Australian Dollars or Hong Kong Dollars, the British Bankers Association Interest Settlement Rate for such currency and such Interest Period, in each case as of 11:00 A.M., Local Time, on the Quotation Day for such Interest Period.  In the event that no such rate is available, the “Eurocurrency Base Rate” shall be determined by reference to such other comparable publicly available service for displaying eurocurrency rates as may be reasonably selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered deposits in the relevant currency at or about 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period in the interbank eurocurrency market where its relevant eurocurrency and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

“ Eurocurrency Rate ” means, for any Interest Period, with respect to a Eurocurrency Rate Loan, the rate of interest per annum (rounded upward to the next 1/1000th of 1 %) determined by the Administrative Agent as follows:

The Eurocurrency Rate shall be adjusted automatically as to all Eurocurrency Rate Loans then outstanding as of the effective date of any change in the Eurocurrency Reserve Percentage.

“ Eurocurrency Rate Loan ” means a Revolving Credit Loan bearing interest at a rate based upon the Eurocurrency Rate.

 

 

“ Eurocurrency Reserve Percentage ” means, for any day, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/1000th of 1%) which is in effect for such day as prescribed by the Federal Reserve Board (or any successor) for determining the maximum reserve requirement (including without limitation any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City and to which the Administrative Agent or any Lender is then subject.

“ Event of Default ” means any of the events specified in Section 11.1 , provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Existing Credit Agreement ” has the meaning assigned thereto in the recitals hereto.

“ Extension of Credit ” means, as to any Lender, (a) any component of such Lender’s Extensions of Credit or (b) the making of, or participation in, a Loan by such Lender or the issuance or extension of, or participation in, a Letter of Credit or Swingline Loan by such Lender, as the context may require.

“ Extensions of Credit ” means, as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Credit Loans made by such Lender then outstanding, (b) if such Lender is a Revolving A Lender, such Lender’s Revolving A Ratable Share of the Revolving A L/C Obligations and Swingline Loans made under the Revolving A Credit Facility then outstanding, (c) if such Lender is a Revolving B Lender, such Lender’s Revolving B Ratable Share of the Revolving B L/C Obligations made under the Revolving B Credit Facility then outstanding, (d) the aggregate principal amount of all Competitive Bid Loans made by such Lender then outstanding and (e) if such Lender is the Swingline Lender, the aggregate principal amount of all Swingline Loans then outstanding.

“ Fee Letter ” has the meaning assigned thereto in Section 13.19.1 .

“ Facility Fee ” has the meaning assigned thereto in Section 4.2 .

“ FDIC ” means the Federal Deposit Insurance Corporation, or any successor thereto.

“ Federal Funds Rate ” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published 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 that is a Business Day, the average of the quotations for the day of such transactions received by Wachovia from three federal funds brokers of recognized standing selected by it.

“ Finance Party ” has the meaning assigned thereto in Section 4.10.3(a) .

“ Financial Letters of Credit ” means any Letter of Credit issued to any Person other than the Parent Borrower or any of its Affiliates to secure the payment by any such Person of its financial obligations, or to provide counter or “back-up” guarantees in support of bank

 

 

guarantees, letters of credit or other credit facilities afforded to the Parent Borrower or any of its Subsidiaries, or to support local currency borrowings outside the United States.

“ Fiscal Year ” means the fiscal year of the Parent Borrower ending on December 31 in any year.

“ Foreign Currency Competitive Bid ” means an offer by a Lender to make a Foreign Currency Competitive Bid Loan in accordance with Section 2.5.2 .

“ Foreign Currency Competitive Bid Loan ” means any Loan denominated in a currency other than U.S. Dollars (as the Parent Borrower and the relevant Lender may from time to time agree) made pursuant to Section 2.5.2  and all such Loans collectively as the context requires.

“ Foreign Currency Competitive Bid Rate ” means the rate of interest per annum expressed as a percentage rate in the form of a decimal to no more than four decimal places offered by a Lender making a Foreign Currency Competitive Bid with respect to any Foreign Currency Competitive Bid Loan.

“ Foreign Currency Competitive Bid Request ” has the meaning assigned thereto in Section 2.5.2(b) .

“ Foreign Currency Loans ” means, collectively, each Revolving Loan and Swingline Loan denominated in Euros, Sterling or any Optional Currency and each Foreign Currency Competitive Bid Loan.

“ Foreign Currency Equivalent ” shall mean, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable foreign currency based upon the spot selling rate at which the Multicurrency Agent offers to purchase such foreign currency with Dollars in the London foreign exchange market at approximately 11:00 a.m. London time on such date of determination for delivery two Business Days later.

“ Foreign Lender ” means any Lender (including any Participant) that is not a “U.S. Person” as defined in Section 7701(a)(30) of the Code.

“ Foreign Pension Plan ” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by the Parent Borrower or any one or more of its Subsidiaries primarily for the benefit of employees of the Parent Borrower or such Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

“ Foreign Subsidiary ” means each Subsidiary of the Parent Borrower that is not organized under the laws of the United States or any State or territory thereof.

“ Foreign Subsidiary Borrowers ” means each Foreign Subsidiary that is a Revolving Borrower and each Competitive Bid Foreign Subsidiary Borrower.

 

 

“ Foreign Subsidiary Borrower Joinder Agreement ” means any Foreign Subsidiary Borrower Joinder Agreement executed and delivered by any Foreign Subsidiary Borrower and the Parent Borrower, substantially in the form of Exhibit J , pursuant to Section 5.3 .

“ Funding Office ” means the office of the Administrative Agent or the Multicurrency Agent specified in or determined in accordance with the provisions of Section 13.1.3 , or any subsequent office which shall have been specified by the Administrative Agent for such purpose by written notice to the Borrowers and the Lenders.

“ GAAP ” means generally accepted accounting principles in the United States, as recognized by the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied and maintained on a consistent basis throughout the period indicated, subject to Section 1.4 .

“ Governmental Approvals ” means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

“ Governmental Authority ” means any nation, province, state or political subdivision thereof, and any government or any Person exercising executive, legislative, regulatory or administrative functions of or pertaining to government, in each case whether U.S. domestic or foreign, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“ Guaranteed Obligations ” means, without duplication, all of the Obligations of the Borrowers to the Lenders and the Administrative Agent, whenever arising, under this Agreement, the Notes or any other Loan Document (including, but not limited to, obligations with respect to principal, interest and fees).

“ Guarantor ” means the Parent Borrower and each Subsidiary of the Parent Borrower identified as a “Guarantor” on the signature pages hereto and any Material Domestic Subsidiary that becomes a Guarantor hereunder after the Closing Date by execution of a Guarantor Joinder Agreement pursuant to Section 8.10 ; provided that each of Pittston Minerals Group Inc. and Pittston Coal Company shall not be a Guarantor hereunder.

“ Guarantor Joinder Agreement ” means a Guarantor Joinder Agreement executed by a Guarantor and the Administrative Agent in substantially the form of Exhibit F , as amended, restated, supplemented or otherwise modified.

“ Hazardous Materials ” means any substances or materials (a) which are or become regulated or defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law, (d) the discharge or emission or release of which requires a permit or license under any Applicable Law or other Governmental Approval, or (e) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation,

 

 

petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.

“ Hedging Agreement ” means any agreement with respect to an interest rate swap, collar, cap, floor or forward rate agreement, foreign currency agreement or other agreement executed to protect the Parent Borrower or any Subsidiary against fluctuations in the prices of commodities, and any confirming letter executed pursuant to such hedging agreement, all as amended, restated or otherwise modified from time to time.

“ Information ” has the meaning assigned thereto in Section 13.9 .

“ Initial Loans ” has the meaning assigned thereto in Section 2.9.4 .

“ Interest Coverage Ratio ” means, as of the last day of any fiscal quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in each case for the period of four (4) consecutive fiscal quarters ending as of such day.

“ Interest Period ” has the meaning assigned thereto in Section 4.1.2 .

“ Internal Control Event ” means a “material weakness” (as defined in Statement on Auditing Standards No. 60) in, or fraud that involves management or other employees who have a significant role in, the Parent Borrower’s internal controls over financial reporting, in each case as described in Section 404 of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder and the accounting and auditing principles, rules, standards and practices promulgated or approved with respect thereto.

“ Investment ” in any Person means (a) the acquisition (whether for cash, property, services, assumption of indebtedness, securities or otherwise) of capital stock, bonds, notes, debentures, partnership, joint ventures or other ownership interests or other securities of such Person, (b) any deposit with, or advance, loan or other extension of credit to, such Person (other than deposits made in connection with the purchase of equipment or other assets in the ordinary course of business) or (c) any other capital contribution to or investment in such Person.

“ Issuing Lender ” means Wachovia Bank, National Association and any other Lender mutually acceptable and on terms satisfactory to such Lender, the Parent Borrower and the Administrative Agent.

“ Labor Laws ” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments and orders relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing.

“ L/C Application ” means an application, in the form specified by any Issuing Lender from time to time, requesting such Issuing Lender to issue a Letter of Credit.

“ L/C Commitment ” means the commitment of an Issuing Lender to issue Letters of Credit as set forth in Article III .

 

 

“ L/C Facility ” means the letter of credit facilities established pursuant to Article III hereof.

“ L/C Fees ” means the Revolving A L/C Fee and the Revolving B L/C Fee.

“ L/C Obligations ” means at any time, an amount equal to the sum of the Revolving A L/C Obligations and the Revolving B L/C Obligations.

“ L/C Termination Date ” means the earlier of (a) the Termination Date and (b) August 11, 2011.

“ Lease ” means a lease, other than a Capital Lease, of real or personal property.

“ Lease Rentals ” for any period means the sum of the rental and other obligations to be paid by the lessee under a Lease during the remaining term of such Lease (excluding any extension or renewal thereof at the option of the lessor or the lessee unless such option has been exercised), excluding any amount required to be paid by the lessee (whether or not therein designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges.

“ Lender ” means each Person executing this Agreement as a Lender as set forth on the signature pages hereto and each Person that hereafter becomes a party to this Agreement as a Lender pursuant to Sections 2.9 , 2.10 , 4.7.6 or  13.8.2 , other than any party hereto that ceases to be a party hereto pursuant to any Assignment and Assumption; provided , that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender, each Issuing Lender and the Swingline Lender, in each case in such capacity.

“ Lending Office ” means, with respect to any Lender, the office(s) of such Lender maintaining such Lender’s Loans made hereunder.

“ Letters of Credit ” means the collective reference to the Revolving A Letters of Credit and the Revolving B Letters of Credit.

“ Leverage Ratio ” means, as of the date of any determination with respect to the Parent Borrower, the ratio of (a) the sum of (i) Consolidated Debt as of such date, plus (ii) the amount by which (A) the aggregate amount, as of the preceding December 31 (or as of such date if such date is December 31), of Consolidated Lease Rentals under non-cancellable Leases entered into by the Parent Borrower or any of its Subsidiaries, discounted to such December 31 to present value at 10% and net of aggregate minimum non-cancellable sublease rentals, determined on a basis consistent with Note 14   to the Parent Borrower’s consolidated financial statements at and for the period ended December 31, 2005, included in the Parent Borrower’s 2005 annual report to shareholders, exceeds (B) $400,000,000, to (b) the sum of (i) the amount determined pursuant to clause (a) plus (ii) Consolidated Net Worth as of such date.

“ LIBOR Market Index Rate ” means, for any date, the rate for one month Dollar, Sterling or Euro deposits, as applicable, as reported on Telerate page 3750 as of 11:00 a.m. London time, on such day, or if such day is not a London Banking Day, then the immediately preceding

 

 

London Banking Day (or if not so reported, then as determined by the Administrative Agent from another recognized source or interbank quotation).

“ LIBOR Market Index Rate Loan ” means any Swingline Loan bearing interest at a rate determined by reference to the LIBOR Market Index Rate.

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such asset.

“ Loan Documents ” means, collectively, this Agreement, the Notes, the L/C Applications, any Guarantor Joinder Agreement, any Foreign Subsidiary Borrower Joinder Agreement, the Fee Letter and each other document, instrument and agreement executed and delivered by any Credit Party for the benefit of the Administrative Agent or any Lender in connection with this Agreement, all as may be amended, restated or otherwise modified.

“ Loans ” means the collective reference to the Revolving Credit Loans, the Competitive Bid Loans and the Swingline Loans; “ Loan ” means any one of such Loans.

“ Local Time ” means (a) in the case of Foreign Currency Loans (except for the Foreign Currency Loans described in clause (b) below), London time, (b) in the case of Foreign Currency Loans denominated in Canadian Dollars and made to a Subsidiary Borrower that is incorporated or otherwise organized under the laws of Canada or any political subdivision thereof, Toronto time and (c) in all other cases, Charlotte, North Carolina time.

“ London Banking Day ” means any day on which banks in London are open for general banking business, including dealings in foreign currency and exchange.

" Mandatory Costs Rate " means in relation to any Interest Period or other period, the cost to any Lender of complying with all reserve, special deposit, capital adequacy, solvency, liquidity ratios, fees or other requirements of or imposed by the Bank of England, the Financial Services Authority, the European Central Bank or any other governmental or regulatory authority for the time being attributable to each Loan or any unpaid sum (rounded up if necessary to 4 decimal places) as conclusively determined by the applicable Agent.

“ Margin Stock ” has the meaning given such term under Regulation U of the Board.

“ Material Adverse Effect ” means (a) a material adverse effect on the financial condition or results of operations of the Parent Borrower and its Restricted Subsidiaries taken as a whole that would impair the ability of the Credit Parties to perform their obligations under the Loan Documents or (b) a material adverse effect on the rights or remedies of the Lenders or the Administrative Agent under the Loan Documents.

“ Material Domestic Subsidiary ” means any Subsidiary of the Parent Borrower which (a) is organized under the laws of the United States, any state thereof or the District of Columbia and

 

 

(b) together with its Subsidiaries, (i) owns more than twenty percent (20%) of Consolidated Total Assets or (ii) accounts for more than twenty percent (20%) of Consolidated EBITDA.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Multicurrency Agent ” means (a) in the case of Foreign Currency Loans denominated in Canadian dollars, Wachovia Capital Finance Corporation (Canada), and (b) for all other Foreign Currency Loans, Wachovia Bank, National Association, London Branch, and any other financial institution designated by the Administrative Agent (and reasonably acceptable to the Parent Borrower) to act as its sub-agent and correspondent hereunder in respect of the disbursement and payment of Foreign Currency Loans.

“ Multiemployer Plan ” means a “multiemployer plan” as defined in Section 400l(a)(3) of ERISA to which the Parent Borrower or any ERISA Affiliate is making, has made, is accruing or has accrued an obligation to make, contributions within the preceding six years.

“ New Lender ” has the meaning assigned thereto in Section 2.9.2 .

“ New Lender Supplement ” means a New Lender Supplement executed by a New Lender, the Parent Borrower and the Administrative Agent, substantially in the form of Exhibit D , pursuant to Section 2.9.2 .

“ Notes ” means any promissory note evidencing Loans.

“ Notice of Account Designation ” has the meaning assigned thereto in Section 2.2.3 .

“ Notice of Borrowing ” has the meaning assigned thereto in Section 2.2.2 .

“ Notice of Conversion/Continuation ” has the meaning assigned thereto in Section 2.3 .

“ Notice of Prepayment ” has the meaning assigned thereto in Section 2.4.3 .

“ Obligations ” means, in each case, whether now in existence or hereafter arising:  (a) the principal of and interest on (including interest accruing after the filing of any bankruptcy or similar petition) the Loans, (b) the Reimbursement Obligations in respect of the Letters of Credit and (c) all other fees and commissions (including attorney’s fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Credit Parties to the Lenders or the Administrative Agent, of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note, in each case under or in respect of this Agreement or any of the other Loan Documents.

“ Offered Increase Amount ” has the meaning assigned thereto in Section 2.9.1 .

“ Operating Lease ” means, as to any Person, as determined in accordance with GAAP, any lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.

 

 

“ Optional Currency ” means any Revolving A Optional Currency and/or Revolving B Optional Currency, as the context may require.

“ Other Taxes ” has the meaning assigned thereto in Section 4.10.2 .

“ Parent Borrower ” means The Brink’s Company, a Virginia corporation.

“ Participant ” has the meaning assigned thereto in Section 13.8.3 .

“ Participation Interest ” means an Extension of Credit by a Lender by way of a purchase of a participation interest in Letters of Credit or L/C Obligations as provided in Section 3.4 , in Swingline Loans as provided in Section 2.6(f) or in any Obligations as provided in Section 4.5 .

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor agency.

“ Pension Plan ” means any employee pension benefit plan (within the meaning of Section 3(2) of ERISA), other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and is maintained for the employees of the Parent Borrower or any of its ERISA Affiliates.

“ Performance Letters of Credit ” means any trade or documentary Letter of Credit issued to secure the performance by any Person of its obligations, or to guarantee or otherwise secure any Person’s obligations relating to a bid, advance payment or security deposit, retention release, custom and duty deferment guaranty or bond, warranty or performance bond or other guaranty.

“ Person ” means an individual, corporation, limited liability company, partnership, association, trust, business trust, joint venture, joint stock company, pool, syndicate, sole proprietorship, unincorporated organization, Governmental Authority or any other form of entity or group thereof.

“ Plan ” means at a particular time, any employee benefit plan that is covered by ERISA and in respect of which the Parent Borrower or any ERISA Affiliate is (or if such plan were terminated at such time, would, under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Prime Rate ” has the meaning assigned thereto in the definition of “ Alternate Base Rate ”.

“ Prior Bank Commitment ” means the Parent Borrower’s committed credit facility evidenced by the Existing Credit Agreement.

“ Quotation Day ” means in respect of the determination of the Eurocurrency Rate for any Interest Period for Eurocurrency Rate Loans in Euros, Sterling or any Optional Currency, the day on which quotations would ordinarily be given by prime banks in the London interbank market for deposits in such currency for delivery on the first day of such Interest Period for such Interest Period; provided , that if quotations would ordinarily be given on more than one date, the Quotation Day for such Interest Period shall be the last of such dates.  On the date hereof, the Quotation Day in respect of any Interest Period (i) for any Optional Currency is customarily the

 

 

last London Banking Day prior to the beginning of such Interest Period which is (a) at least two London Banking Days prior to the beginning of such Interest Period and (b) a day on which banks are open for general banking business in Optional Currency; (ii) for Euros is customarily the day which is two Target Operating Days prior to the first day of such Interest Period and (iii) for Sterling is customarily the day which is the first day of such Interest Period.

“ Ratable Share ” means, as to any Lender at any time, the ratio of (a) the amount of the Commitment of such Lender to (b) the Aggregate Commitment.

“ Real Property ” of any Person means all the right, title and interest of such Person in and to land, improvements and fixtures, including leaseholds.

“ Refinancing ” has the meaning assigned thereto in the recitals hereto.

“ Register ” has the meaning assigned thereto in Section 13.8.2 .

“ Reimbursement Obligation ” means the obligation of any Revolving Borrower to reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit issued for the account of such Revolving Borrower.

“ Reportable Event ” means an event described in Section 4043(c) of ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other than those events as to which the thirty (30) day notice period is waived under subsection .22, .23, .27 or .28 of PBGC Regulation Section 4043.

“ Required Lenders ” means, at any date, any combination of Lenders that hold more than fifty percent (50%) of the Aggregate Commitment then in effect or, if the Aggregate Commitment has been terminated, any combination of Lenders who collectively hold more than fifty percent (50%) of the aggregate unpaid principal amount of the Extensions of Credit (excluding the aggregate unpaid principal amount of Competitive Bid Loans); provided that, for purposes of declaring the Loans to be due and payable pursuant to Article XI , and for all purposes after the Loans become due and payable pursuant to Article XI , the outstanding Competitive Bid Loans of the Lenders shall be included in the Lenders’ respective Extensions of Credit in determining the Required Lenders.

“ Required Revolving A Lenders ” means, at any date, any combination of Revolving A Lenders that hold more than fifty percent (50%) of the Aggregate Revolving A Commitment then in effect or, if the Aggregate Revolving A Commitment has been terminated, any combination of Revolving A Lenders who collectively hold more than fifty percent (50%) of the Aggregate Revolving A Credit Exposure.

“ Required Revolving B Lenders ” means, at any date, any combination of Revolving B Lenders that hold more than fifty percent (50%) of the Aggregate Revolving B Commitment then in effect or, if the Aggregate Revolving B Commitment has been terminated, any combination of Revolving B Lenders who collectively hold more than fifty percent (50%) of the Aggregate Revolving B Credit Exposure.

 

 

“ Responsible Officer ” means any of the following: the chief executive officer or chief financial officer of the Parent Borrower or any other officer of the Parent Borrower proposed by the Parent Borrower and reasonably acceptable to the Administrative Agent.

“ Restricted Subsidiary ” means:

A Restricted Subsidiary (other than any Material Domestic Subsidiary, any Subsidiary that is a Guarantor, Foreign Subsidiary Borrower, or any Subsidiary that owns, directly or indirectly, any of the capital stock of any Guarantor) may be designated by the board of directors of the Parent Borrower as an Unrestricted Subsidiary by written notice to the Administrative Agent, but only if (a) the Subsidiary owns no shares, directly or indirectly, of the Parent Borrower or any Restricted Subsidiary and (b) immediately after such designation, the Leverage Ratio is not greater than 0.60 to 1.00 and the Interest Coverage Ratio is at least 3.00 to 1.00.  An Unrestricted Subsidiary may be designated by the board of directors of the Parent Borrower as a Restricted Subsidiary by written notice to the Administrative Agent, but only if immediately after such designation (x) the Parent Borrower shall be in compliance with Section 9.2  and (y) the Leverage Ratio is not greater than 0.60 to 1.00 and the Interest Coverage Ratio is at least 3.00 to 1.00.

“ Revolving A Borrower ” means each of the Parent Borrower,   each Subsidiary Borrower designated as a Revolving A Borrower in Schedule 1.1(b) , and any other Foreign Subsidiary that has been designated as a Revolving A Borrower pursuant to Section 2.11.1 , other than any of the foregoing Subsidiaries that has ceased to be a Revolving A Borrower as provided in such Section.

“ Revolving A Commitment ” means as to any Lender, the obligation of such Lender to make Revolving A Credit Loans for the account of the Borrowers and participate in Revolving A Letters of Credit and Swingline Loans made under the Revolving A Credit Facility in an aggregate principal and/or stated amount at any time outstanding not to exceed the amount set forth under “Revolving A Commitment” opposite such Lender’s name on Schedule 1.1(a) hereto as such amount may be reduced or modified at any time or from time to time pursuant to the terms hereof.

 

 

“ Revolving A Credit Exposure ” means, with respect to any Revolving A Lender at any time, the Dollar Equivalent of the sum of (i) the aggregate principal amount of all Loans made by such Revolving A Lender that are outstanding at such time, (ii) such Lender’s Revolving A Ratable Share of the Revolving A L/C Obligations at such time and (iii) such Lender’s Participation Interest in Swingline Loans.

“ Revolving A Credit Facility ” means the multi-year revolving credit facility established pursuant to Section 2.1.1(a) hereof.

“ Revolving A Credit Loans ” has the meaning assigned thereto in Section 2.1.1(a) .

“ Revolving A L/C Fee ” has the meaning assigned thereto in Section 3.3.1 .

“ Revolving A L/C Obligations ” means at any time, an amount equal to the Dollar Equivalent of the sum of (a) the aggregate undrawn and unexpired amount of the then outstanding Revolving A Letters of Credit and (b) the aggregate amount of drawings under Revolving A Letters of Credit which have not then been reimbursed pursuant to Section 3.5 .

“ Revolving A Lender ” means each Lender with a Revolving A Commitment or that holds a Revolving A Credit Loan.

“ Revolving A Letters of Credit ” has the meaning assigned thereto in Section 3.1.1 .

“ Revolving A Optional Currency ” means the following currencies made available to the Revolving A Borrowers for the making of Revolving A Credit Loans:  (i) solely as to each Revolving A Borrower, the local currency of the jurisdiction in which such Revolving A Borrower is domiciled as set forth on Schedule 1.1(b) and (ii) any other currency made available by the Revolving A Lenders pursuant to Section 2.11.3 .

“ Revolving A Ratable Share ” means, with respect to any Revolving A Lender at any time, the ratio (expressed as a percentage) of (a) the Revolving A Commitment of such Revolving A Lender at such time to (b) the Aggregate Revolving A Commitment, provided that, if the Termination Date has occurred, the Revolving A Ratable Share of each Revolving A Lender shall be determined based upon the Revolving A Commitments most recently in effect, giving effect to any assignments.

“ Revolving Availability Period ” means the period from and including the Closing Date to but excluding the Termination Date.

“ Revolving B Borrower ” means each of the Parent Borrower,   each Subsidiary Borrower   designated as a Revolving B Borrower in Schedule 1.1(b) ,   and any other Foreign Subsidiary that has been designated as a Revolving B Borrower pursuant to Section 2.11.1 , other than any of the foregoing Subsidiaries that has ceased to be a Revolving B Borrower as provided in such Section.

“ Revolving B Commitment ” means as to any Lender, the obligation of such Lender to make Revolving B Credit Loans for the account of the Parent Borrower and participate in Revolving B Letters of Credit in an aggregate principal and/or stated amount at any time

 

 

outstanding not to exceed the amount set forth under “Revolving B Commitment” opposite such Lender’s name on Schedule 1.1(a) hereto as such amount may be reduced or modified at any time or from time to time pursuant to the terms hereof.

“ Revolving B Credit Exposure ” means, with respect to any Revolving B Lender at any time, the Dollar Equivalent of the sum of (i) the aggregate principal amount of all Loans made by such Revolving B Lender that are outstanding at such time, and (ii) such Lender’s Revolving B Ratable Share of the Revolving B L/C Obligations at such time.

“ Revolving B Credit Facility ” means the multi-year revolving credit facility established pursuant to Section 2.1.1(b) hereof.

“ Revolving B Credit Loans ” has the meaning assigned thereto in Section 2.1.1(b) .

“ Revolving B L/C Fee ” has the meaning assigned thereto in Section 3.3.2 .

“ Revolving B L/C Obligations ” means at any time, an amount equal to the sum of (a) the aggregate undrawn and unexpired amount of the then outstanding Revolving B Letters of Credit and (b) the aggregate amount of drawings under Revolving B Letters of Credit which have not then been reimbursed pursuant to Section 3.5 .

“ Revolving B Lender ” means each Lender with a Revolving B Commitment or that holds a Revolving B Credit Loan.

“ Revolving B Letters of Credit ” has the meaning assigned thereto in Section 3.1.2 .

“ Revolving B Optional Currency ” means the following currencies made available to the Revolving B Borrowers for the making of Revolving B Credit Loans:  (i) solely as to each Revolving B Borrower, the local currency of the jurisdiction in which such Revolving B Borrower is domiciled as set forth on Schedule 1.1(b) and (ii) any other currency made available by the Revolving B Lenders pursuant to Section 2.11.3 .

“ Revolving B Ratable Share ” means, with respect to any Revolving B Lender at any time, the ratio (expressed as a percentage) of (a) the Revolving B Commitment of such Revolving B Lender at such time to (b) the Aggregate Revolving B Commitment, provided that, if the Termination Date has occurred, the Revolving B Ratable Share of each Revolving B Lender shall be determined based upon the Revolving B Commitments most recently in effect, giving effect to any assignments.

“ Revolving Borrower ” means either a Revolving A Borrower or a Revolving B Borrower.

“ Revolving Credit Facilities ” means the collective reference to the Revolving A Credit Facility and the Revolving B Credit Facility.

“ Revolving Credit Loan ” means any loan (other than a Competitive Bid Loan) made to any Revolving Borrower pursuant to Section 2.2 .

 

 

“ Sale and Leaseback Transaction ” means the sale by the Parent Borrower or a Restricted Subsidiary to any Person (other than any Credit Party) of any property or asset and, as part of the same transaction or series of transactions, the leasing as lessee by the Parent Borrower or any Restricted Subsidiary of the same or another property or asset which it intends to use for substantially the same purpose.

“ S&P ” means Standard & Poor’s Ratings Services.

“ Specified Maturity Date ” means August 11, 2011.

“ Sterling ” or “ £ ” means the lawful currency of the United Kingdom.

“ Subsequent Borrowings ” has the meaning assigned thereto in Section 2.9.4 .

“ Subsidiary ” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, 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.  Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Parent Borrower.

“ Subsidiary Borrowers ” means Subsidiaries of the Parent Borrower that are either a Revolving A Borrower or a Revolving B Borrower.

“ Support Obligation ” means, with respect to any Person, at any date without duplication, any Debt of another Person that is guaranteed, directly or indirectly in any manner, by such Person or endorsed (otherwise than for collection or deposit in the ordinary course of business) or discounted with recourse by such Person or any Debt of another Person that has the substantially equivalent or similar economic effect of being guaranteed by such Person or of otherwise making such Person contingently liable therefor, through an agreement or otherwise, including, without limitation, an agreement (i) to purchase, or to advance or supply funds for the payment or purchase of, such Debt, or (ii) to make any loan, advance, capital contribution or other investment in such other Person to assure a minimum equity, asset base, working capital or other balance sheet condition for any date, or to provide funds for the payment of any liability, dividend or stock liquidation payment, or otherwise to supply funds to or in any manner invest in such other Person (unless such investment is expected to constitute a permitted investment under Section 9.10 ).

“ Swingline Commitment ” means the agreement of the Swingline Lender to make Swingline Loans pursuant to Section 2.6 in an aggregate principal amount at any time outstanding not to exceed the amount set forth under “Swingline Commitment” opposite such

 

 

Lender’s name on Schedule 1.1(a) hereto as such amount may be reduced or modified at any time or from time to time pursuant to the terms hereof.

“ Swingline Lender ” means Wachovia, in its capacity as the Swingline Lender under Section 2.6 , and its successor or successors in such capacity.

“ Swingline Loan ” means a LIBOR Market Index Loan made by the Swingline Lender pursuant to Section 2.6 .

“ Swingline Loan Request ” has the meaning set forth in Section 2.6(b) .

“ Swingline Termination Date ” means the earlier of (i) fifth Business Day prior to the Specified Maturity Date and (ii) the Termination Date.

“ Swiss Guidelines ” has the meaning assigned thereto in Section 13.8.2(g) .

“ Swiss Subsidiary ” has the meaning assigned thereto in Section 13.8.2(g) .

“ Syndication Agents ” has the meaning assigned thereto in the recitals hereto.

“ Target Operating Day ” any day that is not (a) a Saturday or Sunday, (b) Christmas Day or New Year’s Day or (c) any other day on which the Trans-European Real-time Gross Settlement Operating System (or any successor settlement system) is not operating (as reasonably determined by the Administrative Agent).

“ Taxes ” has the meaning assigned thereto in Section 4.10.1 .

“ Termination Date ” means the earliest of the dates referred to in Section 2.7 .

“ Type ” (i) when used in reference to any Loan, refers to whether the rate of interest on such Loan, or on the Loans comprising any borrowing, is determined by reference to the Eurocurrency Rate or the Alternate Base Rate and (ii) when used in reference to any Letter of Credit, refers to whether it is a Revolving A Letter of Credit or a Revolving B Letter of Credit.

“ UCC ” means, with respect to any Letter of Credit, the Uniform Commercial Code as in effect in the State in which the corporate headquarters of the relevant Issuing Lender is located or such other jurisdiction as is acceptable to the relevant Issuing Lender, as amended, restated or otherwise modified from time to time.

“ Unfunded Current Liability ” of any Pension Plan means the amount, if any, by which the actuarial present value of the accumulated plan benefits under the Pension Plan as of the close of its most recent year, determined in accordance with actuarial assumptions at such time consistent with Statement of Financial Accounting Standards No. 87 (irrespective of any subsequent changes to or replacements of such Statement), exceeds the sum of (a) the market value of the assets allocable thereto and (b) $5,000,000.

“ Uniform Customs ” means the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500.

 

 

“ United States ” and “ U.S .” mean the United States of America.

“ Unrestricted Subsidiary ” means any Subsidiary other than a Restricted Subsidiary.

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, 107 P.L. 56, as amended.

“ Utilization ” means, for any day, (i) with respect to the Revolving A Credit Facility, (a) (x) the Dollar Equivalent of the aggregate principal amount of all outstanding Loans made by Revolving A Lenders plus (y) the Dollar Equivalent of the then outstanding Revolving A   L/C Obligations and Swingline Loans divided by (b) the Aggregate Revolving A Commitment, the result being expressed as a percentage, and (ii) with respect to the Revolving B Credit Facility, (a) (x) the Dollar Equivalent of the aggregate principal amount of all outstanding Loans made by Revolving B Lenders plus (y) the Dollar Equivalent of the then outstanding Revolving B L/C Obligations with respect thereto divided by (b) the Aggregate Revolving B Commitment, the result being expressed as a percentage.

“ Utilization Fee ” means, for any day, a per annum rate equal to the Applicable Percentage for the Utilization Fee on such day.

“ Wachovia ” means Wachovia Bank, National Association, and its successors and assigns.

Unless otherwise specified, a reference in this Agreement to a particular section, subsection, Schedule or Exhibit is a reference to that section, subsection, Schedule or Exhibit of this Agreement.  Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter.  Any reference herein to “Charlotte, North Carolina time” or “London time” shall refer to the applicable time of day in Charlotte, North Carolina or London, England, as applicable.

1.3.1.            Use of Capitalized Terms .  Unless otherwise defined therein, all capitalized terms defined in this Agreement shall have the defined meanings provided herein when used in this Agreement and the other Loan Documents or any certificate, report or other document made or delivered pursuant to this Agreement.

1.3.2.            Miscellaneous .  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

 

Except as otherwise expressly provided herein, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to the Administrative Agent or the Lenders hereunder shall be prepared, in accordance with GAAP applied on a consistent basis.  All calculations made for the purposes of determining compliance with this Agreement shall (except as otherwise expressly provided herein) be made by application of GAAP applied on a basis consistent with the most recent annual or quarterly financial statements delivered pursuant to Section 7.1 (or, prior to the delivery of the first financial statements pursuant to Section 7.1 , consistent with the annual audited financial statements referenced in Section 6.1.7 ); provided , however , if (a) the Parent Borrower shall object to determining such compliance on such basis at the time of delivery of such financial statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the Administrative Agent or the Required Lenders shall so object in writing within 60 days after delivery of such financial statements, then such calculations shall be made on a basis consistent with the most recent financial statements delivered by the Parent Borrower to the Administrative Agent or the Lenders as to which no such objection shall have been made.

(a)           Each obligation of a Credit Party to make a payment denominated in the currency of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euros at the time of such adoption (in accordance with Applicable Law).  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Foreign Currency Loan in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Foreign Currency Loan, at the end of the then current Interest Period.

(b)           Each provision of this Agreement relating solely to payments denominated in Euros shall be subject to such reasonable changes of construction as the Administrative Agent and the Parent Borrower may from time to time mutually specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

(c)           References herein to minimum Dollar amounts and integral multiples stated in Dollars, where they shall also be applicable to any other currency, shall be deemed to refer to approximate Foreign Currency Equivalent.  Wherever in this Agreement an amount, such as a minimum or maximum limitation on Debt permitted to be incurred or Investments permitted to be made hereunder, is expressed in Dollars, it shall be deemed to refer to the Dollar Equivalent thereof.

 

 

ARTICLE II

CREDIT FACILITIES

2.1.1.            Description of Facilities .  Upon the terms and subject to the conditions set forth in this Agreement:

(a)           the Revolving A Lenders hereby grant to the Revolving A Borrowers a five-year revolving credit facility (the “ Revolving A   Credit Facility ”) pursuant to which each Revolving A Lender severally agrees to make revolving credit loans (the “ Revolving A Credit Loans ”), from time to time during the Revolving Availability Period, to each Revolving A Borrower in Dollars, Euros, Sterling or any Revolving A Optional Currency as set forth on Schedule 1.1(b) , in each case in an aggregate principal amount at any time outstanding that will not result in: (1) the Aggregate Revolving A   Credit Exposure exceeding the Aggregate Revolving A   Commitment; or (2) such Lender’s Revolving A   Credit Exposure exceeding its Revolving A   Commitment.  Each Revolving A Credit Loan made by a Revolving A   Lender shall be in a principal amount equal to such Lender’s Revolving A Ratable Share of the aggregate principal amount of Revolving A   Credit Loans requested on such occasion; and

(b)           the Revolving B Lenders hereby grant to the Revolving B   Borrowers a five-year revolving credit facility (the “ Revolving B Credit Facility ”) pursuant to which each Revolving B Lender severally agrees to make revolving credit loans (the “ Revolving B Credit Loans ”), from time to time during the Revolving Availability Period, to each Revolving B Borrower in Dollars, Euros, Sterling or any Revolving B Optional Currency as set forth on Schedule 1.1(b) , in each case in an aggregate principal amount at any time outstanding that will not result in (1) the Aggregate Revolving B   Credit Exposure exceeding the Aggregate Revolving B   Commitment; or   (2) such Lender’s Revolving B   Credit Exposure exceeding its Revolving B   Commitment.  Each Revolving B Credit Loan made by a Revolving B   Lender shall be in a principal amount equal to such Lender’s Revolving B Ratable Share of the aggregate principal amount of Revolving B   Credit Loans requested on such occasion.

2.1.2.            Application of Facilities .  The Credit Facilities established hereby shall be used by the Borrowers and their Subsidiaries for any lawful purpose, including, without being limited to:

(a)           refinance existing Debt of the Parent Borrower and its Subsidiaries outstanding under the Prior Bank Commitment; and

(b)           finance the working capital, capital expenditures, acquisitions permitted under this Agreement and general corporate purposes of the Borrowers and their Subsidiaries; provided , however , that no portion of the proceeds of any Loan shall be used to fund any such acquisition unless at such time (to the extent required by law and/or the corporate governance or other organizational documents of the subject company) the board of directors of the subject company shall have either (i) approved such acquisition or recommended it to shareholders or (ii) taken a position that it will neither recommend for or against such acquisition; and, accordingly, each of the Borrowers shall apply all amounts borrowed by it hereunder in

 

 

conformity with such purposes and neither the Administrative Agent nor any Lender shall be obligated to see to the application thereof.

2.1.3.            Lender Agreement .  Each Lender severally agrees, and by making any advance hereunder shall be deemed severally to represent, that: (i) none of the funds made available by such Lender with respect to any Revolving Credit Loan or any Competitive Bid Loan constitute “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101, (ii) it qualifies as a "professional market party" as defined in the Exemption Decree to the 1992 Credit Supervision Act (Vrijstellingsregeling wet toezicht kredietwezen 1992), State Gazette (Staatscourant) 2002, 120, as amended by State Gazette (Staatscourant) 2005, 247, and as amended by the Dutch Central Bank’s Policy Guidelines (issued in relation to the Dutch Exemption Regulation) dated 29 December 2004 (Beleidsregel 2005 kernbegrippen markttoetreding en handhaving Wtk 1992), as amended from time to time and (iii) under Applicable Law in effect as of the Closing Date, it has the full power and authority to make Loans and other Extensions of Credit into the jurisdictions and in the currencies made available in its Class.  If the representation set forth in clause (iii) above at any time proves to be false as of the Closing Date for any Lender, then such Lender will, at no expense to the Credit Parties and prior to such Lender becoming a Defaulting Lender hereunder, (A) promptly give notice thereof to the Administrative Agent and the Parent Borrower, and (B) either obtain a replacement commitment from an Assignee pursuant to Section 13.8.2 that is authorized to lend in all such jurisdictions and currencies made available in its Class or arrange for another Lender or other financial institution to make or continue Loans on behalf of such Lender, in each case reasonably acceptable to the Parent Borrower and the Administrative Agent.  The remedy set forth in Section 4.7.6 shall be the Credit Parties’ sole and exclusive remedy for any Lender’s breach of the representation set forth in clause (ii) and (iii) above.

2.2.1.            Borrowing Options .

(a)           Each Revolving Credit Loan shall be made as part of a borrowing consisting of Revolving Credit Loans of the same Class and Type made by the Lenders ratably in accordance with their Revolving A Ratable Share or Revolving B Ratable Share, as the case may be.  The failure of any Lender to make any Revolving Credit Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitment of each Lender is several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)           Subject to Section 4.7 , each borrowing of Revolving Credit Loans shall be comprised entirely of (A) in the case of a borrowing denominated in Dollars, Eurocurrency Rate Loans or Alternate Base Rate Loans as the applicable Borrower may request in accordance herewith, and (B) in the case of a borrowing denominated in Euros, Sterling or any Optional Currency, Eurocurrency Rate Loans.  Each Lender at its option may satisfy its obligation to make any Revolving Credit Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Credit Loan (in which case all payments of principal and interest with respect to such Loan shall be owed to such branch or Affiliate); provided that any exercise

 

 

of such option shall not reduce the obligation of the applicable Revolving Borrower to repay such Loan in accordance with the terms of this Agreement.

(c)           Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of 15 borrowings of Eurocurrency Rate Loans outstanding.

(d)           Notwithstanding any other provision of this Agreement, no Revolving Borrower shall be entitled to request, or to elect to convert or continue, any borrowing of Revolving Credit Loans if the Interest Period requested with respect thereto would end after the Specified Maturity Date.

2.2.2.            Requests for Revolving Credit Loans .

(a)           The Parent Borrower (on its own behalf or on behalf of any Subsidiary Borrower) shall give the Administrative Agent irrevocable prior written notice in the form attached hereto as Exhibit A (a “ Notice of Borrowing ”) not later than (i) 11:00 a.m., Charlotte, North Carolina time, on the same Business Day as each Alternate Base Rate Loan, (ii) 12:00 noon, Charlotte, North Carolina time, at least three (3) Business Days before each Dollar Eurocurrency Rate Loan and (iii) 4:00 p.m., Charlotte, North Carolina time, at least five (5) Business Days before each Revolving Loan denominated in Euros, Sterling or any Optional Currency, in each case, of its intention to borrow, specifying (A) the Borrower on whose behalf the Parent Borrower is requesting such borrowing; (B) the date of such borrowing, which shall be a Business Day, (C) whether the requested borrowing is to be a borrowing of Revolving A Credit Loans and/or Revolving B Credit Loans, (D) the amount of such borrowing, which shall be, (x) with respect to Alternate Base Rate Loans, in an aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, and (y) with respect to Eurocurrency Rate Loans, in an aggregate principal amount of the Dollar Equivalent of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or such other amount as may be satisfactory to the Administrative Agent), (E) whether such Revolving Credit Loan is to be a Eurocurrency Rate Loan or an Alternate Base Rate Loan, (F) in the case of a Eurocurrency Rate Loan, (x) the currency in which such Eurocurrency Rate Loan is to be denominated and (y) the duration of the Interest Period applicable thereto, (G) in the case of a requested Revolving Credit Loan to a Foreign Subsidiary, the name and location of such Foreign Subsidiary, (H) the location and number of the applicable Revolving Borrower’s account to which funds are to be disbursed and (I) the Dollar Equivalent of the aggregate principal amount (in each relevant currency) of all Competitive Bid Loans to the Borrowers then outstanding.  Notices received after the applicable time set forth above shall be deemed received on the next Business Day.  The Administrative Agent shall promptly notify the Lenders of each Notice of Borrowing and in any case, no later than one Business Day after receipt of a Notice of Borrowing for Revolving Credit Loans denominated in Euros, Sterling or any Optional Currency.

(b)           The Administrative Agent shall calculate the Dollar Equivalent of each outstanding Foreign Currency Loan (i) as of the date of any Notice of Borrowing or Notice of Conversion/Continuation, (ii) at the end of each calendar month and (iii) at such time and from time to time as the Administrative Agent shall determine or the Required Lenders or Parent Borrower shall require, and in each case, shall notify the Parent Borrower of such calculation,

 

 

and such calculation shall be the basis of any determination of the availability of credit hereunder.

2.2.3.            Disbursement of Revolving Credit Loans .  Upon receipt of any notice pursuant to the last sentence of Section 2.2.2(a) , each Lender (or its respective domestic or foreign branch or Affiliate) will make available to the Administrative Agent, for the account of the relevant Borrower at the relevant Funding Office, in funds immediately available to the Administrative Agent and in the applicable currency, such Lender’s Revolving A Ratable Share of the Revolving A Credit Loans to be made on such borrowing date or such Lender’s Revolving B Ratable Share of the Revolving B Credit Loans to be made on such borrowing date, as applicable, no later than 2:00 p.m., Charlotte, North Carolina time, on the proposed borrowing date of an Alternate Base Rate Loan or Dollar Eurocurrency Rate Loan, and no later than 10:00 a.m., Charlotte, North Carolina time, on the proposed borrowing date of an Eurocurrency Rate Loan denominated in Euros, Sterling or any Optional Currency.  Each Revolving Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested for such Revolving Borrower pursuant to this Section 2.2 in immediately available funds by crediting or wiring such proceeds to the deposit account of the such Revolving Borrower identified in the most recent notice of account designation, substantially in the form of Exhibit B hereto (a “ Notice of Account Designation ”), delivered by such Revolving Borrower to the Administrative Agent, or as may be otherwise agreed upon from time to time by such Revolving Borrower and the Administrative Agent.  Subject to Section 4.6 hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any Revolving A Credit Loan or Revolving B Credit Loan requested pursuant to this Section 2.2 for which any Lender is responsible to the extent that such Lender has not made available to the Administrative Agent its Revolving A Ratable Share of such Revolving A Credit Loan or its Revolving B Ratable Share of such Revolving B Credit Loan, as applicable.

Section 2.3     Conversion and Continuation of Revolving Credit Loans .  Provided that no Default or Event of Default has occurred and is then continuing, and subject to the terms of this Agreement, each Borrower shall have the option (a) to convert all or any portion of its outstanding Revolving Credit Loans made as Alternate Base Rate Loans in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof (or such other amount as may be satisfactory to the Administrative Agent) into one or more Dollar Eurocurrency Rate Loans and (b)(i) to convert all or any part of its outstanding Dollar Eurocurrency Rate Loans in a principal amount equal to $1,000,000 or a whole multiple of $100,000 in excess thereof into Alternate Base Rate Loans or (ii) to continue Eurocurrency Rate Loans as Eurocurrency Rate Loans in the same currency for an additional Interest Period; provided that if any conversion or continuation is made prior to the expiration of any Interest Period, the relevant Borrower shall pay any amount required to be paid pursuant to Section 4.8 hereof.  Whenever any Borrower desires to convert or continue Revolving Credit Loans as provided above, such Borrower shall give the Administrative Agent irrevocable prior written notice in the form attached as Exhibit G (a “ Notice of Conversion/Continuation ”) not later than (i) 11:00 a.m., Charlotte, North Carolina time, on the same Business Day in the case of a conversion of a Dollar Eurocurrency Rate Loan to a Alternate Base Rate Loan, (ii) 12:00 noon, Charlotte, North Carolina time, at least three (3) Business Days before the proposed conversion into or a continuation of a Dollar Eurocurrency Rate Loan and (iii) 4:00 p.m., Charlotte, North Carolina time, at least five (5) Business Days before the proposed continuation of any Eurocurrency Rate Loan denominated in Euros, Sterling

 

 

or any Optional Currency.  The Administrative Agent shall promptly notify the Lenders of such Notice of Conversion/Continuation.

2.4.1.            Repayment on Termination Date .  Each Borrower agrees to repay the outstanding principal amount of all Loans made to it under, and its Reimbursement Obligations under, the Revolving Credit Facilities in full on the Termination Date, with all accrued but unpaid interest thereon.

2.4.2.            Mandatory Repayment of Loans .

(a)           If at any time the Aggregate Revolving A Credit Exposure exceeds 105% (or if none of such Aggregate Revolving A Credit Exposure is denominated in Euros, Sterling or any Optional Currency, 100%) of the Aggregate Revolving A Commitment, the relevant Borrower or Borrowers agree immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving A Lenders, to repay Revolving A Credit Loans, Swingline Loans or Competitive Bid Loans and/or furnish cash collateral as described in Section 2.4.2(c) , in the Dollar Equivalent of the amount of such excess.  Any repayment of Eurocurrency Rate Loans pursuant to this Section 2.4.2(a) other than on the last day of the Interest Period applicable thereto shall be accompanied by any amount required to be paid pursuant to Section 4.8 hereof.

(b)           If at any time the Aggregate Revolving B Credit Exposure exceeds 105% (or if none of such Aggregate Revolving B Credit Exposure is denominated in Euros, Sterling or any Optional Currency, 100%) of the Aggregate Revolving B Commitment, the relevant Borrower or Borrowers agree immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving B Lenders, to repay Revolving B Credit Loans or Competitive Bid Loans and/or furnish cash collateral as described in Section 2.4.2(c) , in the Dollar Equivalent of the amount of such excess.  Any repayment of Eurocurrency Rate Loans pursuant to this Section 2.4.2(b) other than on the last day of the Interest Period applicable thereto shall be accompanied by any amount required to be paid pursuant to Section 4.8 hereof.

(c)           (i) As an alternative to repaying Loans as prescribed in Section 2.4.2(a)  and Section 2.4.2(b) , the Parent Borrower may deposit with the Administrative Agent cash collateral in the Dollar Equivalent of the amount in excess as described in such Sections, it being understood that if such excess remains outstanding for more than 45 days, the Administrative Agent shall apply any and all such cash collateral to repay the outstanding Loans of the relevant Class in the amount of such excess.  Until such time, such cash collateral shall be maintained and applied in accordance with Section 11.2.2 .

2.4.3.            Optional Repayments .  Each Revolving Borrower may at any time and from time to time repay the Revolving Credit Loans made to it, in whole or in part, upon (i) at least three (3) Business Days irrevocable notice by the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower) to the Administrative Agent with respect to Eurocurrency Rate Loans (which shall include Dollar Eurocurrency Rate Loans and/or

 

 

Eurocurrency Rate Loans denominated in Euros, Sterling or any Optional Currency) and (ii) upon one (1) Business Day irrevocable notice by the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower) to the Administrative Agent with respect to Alternate Base Rate Loans, in the form attached hereto as Exhibit C (a “ Notice of Prepayment ”) specifying the date and amount of repayment and whether the repayment is of Revolving A Credit Loans and/or Revolving B Credit Loans and of Eurocurrency Rate Loans and/or Alternate Base Rate Loans, or a combination thereof, and, if of a combination, the amount allocable to each.  Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving A Lender or Revolving B Lender, as applicable.  If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice.  Partial repayments shall be in an aggregate amount of $1,000,000 or a whole multiple of $100,000 in excess thereof with respect to Alternate Base Rate Loans, and $5,000,000 or a whole multiple of $l,000,000 in excess thereof (or such other amount as may be satisfactory to the Administrative Agent) with respect to Eurocurrency Rate Loans.

2.4.4.            Limitation on Repayment of Eurocurrency Rate Loans .  A Revolving Borrower may not repay any Eurocurrency Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless such repayment is accompanied by any amount required to be paid pursuant to Section 4.8 hereof.

2.4.5.            Limitation on Repayment of Competitive Bid Loans .  A Borrower may not repay any Competitive Bid Loan on any day other than on the last day of the Interest Period applicable thereto except, and on such terms, as agreed to by the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower) and the Lender which made such Competitive Bid Loan.

2.5.1.            Dollar Competitive Bid Loans

(a)           Subject to the terms and conditions set forth herein, from time to time until the expiration or termination of the Aggregate Commitment, each Lender may (but shall not have any obligation to) submit Dollar Competitive Bids under its respective Revolving Credit Facility, and the Parent Borrower may (but shall not have any obligation to) accept Dollar Competitive Bids and borrow Dollar Competitive Bid Loans (in each case, on its own behalf or on behalf of the relevant Subsidiary Borrower); provided that after giving effect thereto, (i) the Dollar Equivalent of the Aggregate Revolving A Credit Exposure or Aggregate Revolving B Credit Exposure, as the case may be, shall not at any time exceed the Aggregate Revolving A Commitment or Aggregate Revolving B Commitment, as the case may be and (ii) there shall not be outstanding at any time more than 5 Competitive Bid Loans.  Unless otherwise mutually agreed with the Administrative Agent, the Parent Borrower shall administer the bidding and acceptance process for Dollar Competitive Bid Loans in accordance with the terms and conditions of this Section 2.5.1 .

 

 

such borrowing, which shall be a Business Day, and, unless timely accepted, shall automatically lapse at 11:30 a.m. (Charlotte, North Carolina time) on such date.  A Dollar Competitive Bid may be for an amount greater than (or less than) such Lender’s Commitment.   Each Dollar Competitive Bid shall be irrevocable and shall specify (i) the principal amount (which shall be a minimum of $500,000 and an integral multiple of $100,000 in excess thereof) of the Dollar Competitive Bid Loan or Loans that the applicable Lender is willing to make, (ii) the Dollar Competitive Bid Rate or Rates at which such Lender is prepared to make such Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places), (iii) the Interest Period applicable to each such Loan and the last day thereof, (iv) the name of the relevant Borrower, (v) the location and number of the applicable Borrower’s account to which funds are to be disbursed and (vi) the number of all Competitive Bid Loans then outstanding and the Dollar Equivalent of the aggregate principal amount thereof.  The Parent Borrower may accept or reject any Dollar Competitive Bid; provided that the Parent Borrower shall not accept a Dollar Competitive Bid made at a particular Dollar Competitive Bid Rate if the Parent Borrower rejects a Dollar Competitive Bid made at a lower Dollar Competitive Bid Rate, unless the Parent Borrower determines in its good faith judgment that the overall cost of accepting the Dollar Competitive Bid made at the lower Dollar Competitive Bid Rate (due to fees or other expenses in connection with such Dollar Competitive Bid) exceeds that of the Dollar Competitive Bid made at the higher Dollar Competitive Bid Rate.

(c)           The provisions of the preceding paragraph notwithstanding, if Dollar Competitive Bids were made by Lenders on a Business Day with respect to a particular Interest Period and such bids lapsed at 11:30 a.m. (Charlotte, North Carolina time) on such Business Day pursuant to the preceding paragraph, the Parent Borrower may, in its sole and absolute discretion, subject only to the provisions of this paragraph, contact one or more of such Lenders, by telephone, telecopy or email, prior to 3:00 p.m. (Charlotte, North Carolina time) on such Business Day to request that such Lenders reinstate such Dollar Competitive Bids for such Interest Period or provide new Dollar Competitive Bids for such Interest Period on such Business Day.  Each Dollar Competitive Bid so reinstated shall be submitted by telecopy or electronic mail to the Parent Borrower or by telephone (promptly confirmed in writing to the Parent Borrower) on the proposed date of such borrowing.  Notwithstanding anything to the contrary in any Dollar Competitive Bid reinstated or submitted pursuant to this paragraph, each such Dollar Competitive Bid shall be irrevocable in respect of the date on which it is to reinstated or submitted and shall automatically expire at the earlier of (a) 3:00 p.m. (Charlotte, North Carolina time) on the date submitted and (b) one hour after such Dollar Competitive Bid is received by the Parent Borrower.

(d)           The Parent Borrower may, in its sole and absolute discretion, subject only to the provisions of this paragraph, accept any Dollar Competitive Bid submitted under this Section by notifying the Lender submitting such Dollar Competitive Bid by telephone, telecopy or email not later than the expiration time of such bid, which acceptance notice shall be further confirmed to such Lender and to the Administrative Agent in writing by telecopy or email not later than the close of business on the date of acceptance, indicating the Interest Period and the agreed interest rate on and principal amount of the Dollar Competitive Bid Loan to be made by such Lender on such Business Day.  A notice given by the Parent Borrower pursuant to this paragraph shall be irrevocable.

 

 

(e)           Not later than 4:00 p.m. (Charlotte, North Carolina time) on the proposed borrowing date, each Lender whose Dollar Competitive Bid has been accepted will disburse its Dollar Competitive Bid Loan in immediately available funds by crediting or wiring such proceeds to the deposit account of the relevant Borrower identified in its most recent Notice of Account Designation.  Each such Lender shall furnish account wiring instructions to the Parent Borrower for the payment of principal and interest.

(f)           At the written request of any Lender or the Administrative Agent, the Parent Borrower shall disclose to the Administrative Agent the Dollar Competitive Bids received and accepted by the Parent Borrower on any date specified in such request, provided that such date is not more than 30 days prior to the date on which such request is received by the Parent Borrower.

(g)           Each outstanding Dollar Competitive Bid Loan shall reduce the Commitment of each Lender ratably in the proportion such Lender’s Commitment bears to the Aggregate Commitment, regardless of which Lender or Lenders make such Dollar Competitive Bid Loan.

(h)           Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the relevant Borrower to such Lender resulting from each Dollar Competitive Bid Loan made by such Lender to the relevant Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  The entries maintained in the accounts maintained pursuant to the immediately preceding sentence shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided , however , that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the relevant Borrower to repay the Obligations in accordance with their terms.

(i)           Unless such Dollar Competitive Bid Loan is renewed at the Lender’s option upon request of the Parent Borrower, the relevant Borrower shall repay the outstanding principal amount of each Dollar Competitive Bid Loan made to it in full on the last day of the Interest Period applicable thereto, with all accrued but unpaid interest thereon.  Dollar Competitive Bid Loans may not be repaid prior to the last day of the applicable Interest Period except in accordance with Sections 2.4.2 and 2.4.5 .

2.5.2.            Foreign Currency Competitive Bid Loans .

(a)           Subject to the terms and conditions set forth herein, from time to time until the expiration or termination of the Aggregate Commitment, each Lender may (but shall not have any obligation to) submit Foreign Currency Competitive Bids under its respective Revolving Credit Facility, and the Parent Borrower may (but shall not have any obligation to) accept Foreign Currency Competitive Bids and borrow Foreign Currency Competitive Bid Loans (in each case, on its own behalf or on behalf of the relevant Subsidiary Borrower); provided that after giving effect thereto, (i) the Dollar Equivalent of the Aggregate Revolving A Credit Exposure or Aggregate Revolving B Credit Exposure, as the case may be, shall not at any time exceed the Aggregate Revolving A Commitment or Aggregate Revolving B Commitment, as the

 

 

case may be and   (ii) there shall not be outstanding at any time more than 5 Competitive Bid Loans.  Unless otherwise mutually agreed with the Administrative Agent, the Parent Borrower shall administer the bidding and acceptance process for Foreign Currency Competitive Bid Loans in accordance with the terms and conditions of this Section 2.5.2 .

(b)           When any Borrower wishes to request Foreign Currency Competitive Bids, the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower) shall transmit to the Lenders, a request for Foreign Currency Competitive Bids to be received no later than one Business Day prior to the date on which such Foreign Currency Competitive Bids are to be submitted by the Lenders specifying:  (i) the date and time such Foreign Currency Competitive Bids must be submitted to the relevant Borrower, (ii) the proposed borrowing date of such Foreign Currency Competitive Bid Loan, which shall be a Business Day, (iii) the aggregate principal amount of such requested Foreign Currency Competitive Bid Loan, (iv) the currency in which such requested Foreign Currency Competitive Bid Loan shall be made available, (v) the name of the relevant Borrower, (vi) the location and number of the applicable Borrower’s account to which the proceeds of the Foreign Currency Competitive Bid Loan are to be disbursed and (vii) any other conditions relevant to such requested Foreign Currency Competitive Bid Loan (a “ Foreign Currency Competitive Bid Request ”).

(c)           Each Foreign Currency Competitive Bid shall be submitted by telecopy, electronic mail or telephone (promptly confirmed in writing to the relevant Borrower) to the Parent Borrower (or, at its option, to the relevant Foreign Subsidiary Borrower) no later than the time specified in the Foreign Currency Competitive Bid Request, and, unless timely accepted, shall automatically lapse one hour thereafter.  A Foreign Currency Competitive Bid may be for an amount greater than (or less than) such Lender’s Commitment.  Each Foreign Currency Competitive Bid shall be irrevocable and shall specify (i) the principal amount of the Foreign Currency Competitive Bid Loan or Loans that the applicable Lender is willing to make, (ii) the Foreign Currency Competitive Bid Rate or Rates at which such Lender is prepared to make such Foreign Currency Competitive Bid Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places), (iii) the currency in which such Foreign Currency Competitive Bid Loan is to be denominated, (iv) the Interest Period applicable to each such Loan and the last day thereof and (v) any other information that the Parent Borrower shall have required to be provided to it in the Foreign Currency Competitive Bid Request.  The Parent Borrower may accept or reject any Foreign Currency Competitive Bid (on its own behalf or on behalf of the relevant Subsidiary Borrower); provided that the Parent Borrower shall not accept a Foreign Currency Competitive Bid made at a particular Foreign Currency Competitive Bid Rate if the Parent Borrower rejects a Foreign Currency Competitive Bid made at a lower Foreign Currency Competitive Bid Rate, unless the Parent Borrower determines in its good faith judgment that the overall cost of accepting the Foreign Currency Competitive Bid made at the lower Foreign Currency Competitive Bid Rate (due to withholding taxes, fees or other expenses in connection with such Foreign Currency Competitive Bid) exceeds that of the Foreign Currency Competitive Bid made at the higher Foreign Currency Competitive Bid Rate.

 

pursuant to the preceding paragraph, the Parent Borrower may, in its sole and absolute discretion, subject only to the provisions of this paragraph, contact one or more of such Lenders, by telephone, telecopy or email, following the lapse of such Foreign Currency Competitive Bid on such Business Day to request that such Lenders reinstate such Foreign Currency Competitive Bids for such Interest Period or provide new Foreign Currency Competitive Bids for such Interest Period on such Business Day.  Each Foreign Currency Competitive Bid so reinstated shall be submitted by telecopy or electronic mail to the Parent Borrower or by telephone (promptly confirmed in writing to the Parent Borrower) on the proposed date of such borrowing.  Notwithstanding anything to the contrary in any Foreign Currency Competitive Bid reinstated or submitted pursuant to this paragraph, each such Foreign Currency Competitive Bid shall be irrevocable in respect of the date on which it is to reinstated or submitted and shall automatically expire at one hour after such Foreign Currency Competitive Bid is received by the Parent Borrower.

(e)           The Parent Borrower (on its behalf or on behalf of the any Foreign Subsidiary Borrower) may, in its sole and absolute discretion, subject only to the provisions of this paragraph, accept any Foreign Currency Competitive Bid submitted under this Section by notifying the Lender submitting such Foreign Currency Competitive Bid by telephone, telecopy or email not later than the expiration time of such Foreign Currency Competitive Bid, which acceptance notice shall be further confirmed to such Lender and to the Administrative Agent in writing by telecopy or email not later than the close of business on the date of acceptance, indicating the Interest Period and the agreed interest rate on and principal amount of the Foreign Currency Competitive Bid Loan to be made by such Lender on such Business Day.  A notice given by the relevant Borrower pursuant to this paragraph shall be irrevocable.

(f)           Not later than the time set forth in the relevant Foreign Currency Competitive Bid Request, each Lender whose Foreign Currency Competitive Bid has been accepted will disburse its Foreign Currency Competitive Bid Loan in immediately available funds and in the relevant currency by crediting or wiring such proceeds to the deposit account of the relevant Borrower identified in its most recent Notice of Account Designation.  Each such Lender shall furnish account wiring instructions to the relevant Borrower for the payment of principal and interest.

(g)           At the written request of any Lender or the Administrative Agent, the Parent Borrower shall disclose to the Administrative Agent the Foreign Currency Competitive Bids received and accepted by the Borrowers on any date specified in such request, provided that such date is not more than 30 days prior to the date on which such request is received by such Borrowers.

(h)           Each outstanding Foreign Currency Competitive Bid Loan shall reduce the Commitment of each Lender ratably in the proportion such Lender’s Commitment bears to the Aggregate Commitment, regardless of which Lender or Lenders make such Foreign Currency Competitive Bid Loan.

(i)           Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the relevant Borrower to such Lender resulting from each Foreign Currency Competitive Bid Loan made by such Lender to the

 

relevant Borrower from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.  The entries maintained in the accounts maintained pursuant to the immediately preceding sentence shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided , however , that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the relevant Borrower to repay the Obligations in accordance with their terms.

(j)           Unless such Foreign Currency Competitive Bid Loan is renewed at the Lender’s option upon request of the Parent Borrower, the relevant Borrower shall repay the outstanding principal amount of each Foreign Currency Competitive Bid Loan made to it in full on the last day of the Interest Period applicable thereto, with all accrued but unpaid interest thereon.  Foreign Currency Competitive Bid Loans may not be repaid prior to the last day of the applicable Interest Period except in accordance with Sections 2.3.2 and 2.3.5 .

(a)           The Swingline Lender agrees, on the terms and subject to the conditions set forth herein, to make a portion of the Revolving A Commitment available to the Parent Borrower from time to time prior to the Swingline Termination Date by making Swingline Loans to the Parent Borrower in Dollars, Sterling or Euros (each such loan, a “ Swingline Loan ” and collectively, the “ Swingline Loans ”), in each case in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate Dollar Equivalent of the Swingline Loans outstanding at any one time exceeding the Swingline Commitment, (ii) with regard to each Revolving A Lender individually (other than the Swingline Lender in its capacity as such), the Dollar Equivalent of such Lender’s Revolving A Credit Exposure exceeding such Lender’s Revolving A Commitment, or (iii) with regard to the Revolving A Lenders collectively, the Dollar Equivalent of the Aggregate Revolving A Credit Exposure exceeding the Aggregate Revolving A Commitment.  Swingline Loans may be repaid and reborrowed in accordance with the provisions hereof prior to the Swingline Termination Date.  The proceeds of any Swingline Loan may be used, in whole or in part, to refund any prior Swingline Loan.

(b)           The Parent Borrower shall request a Swingline Loan by irrevocable written notice (or telephone notice promptly confirmed in writing) substantially in the form of Exhibit A–2 hereto (a “ Swingline Loan Request ”) to the Swingline Lender and the Administrative Agent (i) not later than 2:00 p.m. Charlotte, North Carolina time on the date of funding a Swingline Loan denominated in Dollars which shall be a Business Day, and (ii) not later than 11:00 a.m. Charlotte, North Carolina time on the Business Day prior to the date requested to borrow a Swingline Loan denominated in Sterling or Euros.  Each Swingline Loan shall be made as a LIBOR Market Index Rate Loan and, in each case, subject to Section 2.6(c) , shall have such maturity date as agreed to by the Swingline Lender and the Parent Borrower.

(c)           Swingline Loans shall be due and payable on the earliest of (i) the maturity date agreed to by the Swingline Lender and the Parent Borrower with respect to such Swingline Loan, which shall not be longer than 30 days after the date of borrowing, (ii) the Swingline Termination Date, (iii) the occurrence of a Bankruptcy Event with respect to the Parent Borrower, any Guarantor or any Foreign Subsidiary Borrower with Obligations then

 

 

outstanding under this Agreement or (iv) the acceleration of any Loan or the termination of the Aggregate Commitment pursuant to Section 11.2 .

(d)           The Swingline Lender may, at any time in its sole discretion, by written notice delivered to the Administrative Agent no later than 11:00 a.m., Charlotte, North Carolina time, on any Business Day, require the Revolving A Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding, and each Revolving A Lender hereby irrevocably agrees to purchase, and shall be deemed to have purchased, a Participation Interest in such outstanding Swingline Loans in an amount equal to its Revolving A Ratable Share of the unpaid amount together with accrued interest thereon.  Not later than 2:00 p.m. Charlotte, North Carolina time on the Business Day such notice is given, each Revolving A Lender shall deliver to the Swingline Lender an amount equal to its respective Participation Interest in such Swingline Loans in same day funds and in the applicable currency at the office of the Swingline Lender specified on Section 13.1 .  In order to evidence such Participation Interest, each such Revolving A Lender agrees to enter into a participation agreement at the request of the Swingline Lender in form and substance reasonably satisfactory to all parties.  In the event any Revolving A Lender fails to make available to the Swingline Lender the amount of its Participation Interest as provided in this Section 2.6(d) , the Swingline Lender shall be entitled to recover such amount on demand from such Revolving A Lender together with interest at the Federal Funds Rate for one Business Day and thereafter at the Alternate Base Rate.

(e)           A copy of each notice given by the Swingline Lender pursuant to this Section 2.6 shall be promptly delivered by the Swingline Lender to the Administrative Agent and the Parent Borrower.

(f)           The obligation of each of the Revolving A Lenders to purchase Participation Interests in outstanding Swingline Loans pursuant to Section 2.6(d)  shall be absolute and unconditional and shall not be affected by any circumstance, including (without limitation) (i) any set–off, counterclaim, recoupment, defense or other right which such Lender or any other Person may have against the Swingline Lender or any Credit Party, (ii) the occurrence or continuance of a Default or an Event of Default or the termination or reduction in the amount of the Aggregate Commitment after any such Swingline Loans were made, (iii) any adverse change in the condition (financial or otherwise) of any Credit Party or any other Person, (iv) any breach of this Agreement or any other Loan Document by any Credit Party or any other Lender, (v) whether any condition specified in Section 5.2 is then satisfied or (vi) any other circumstance, happening or event whatsoever, whether or not similar to any of the forgoing.  If such Revolving A Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor, and until such time as such Lender makes the required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the amount of such unpaid Participation Interest for all purposes of the Loan Documents other than those provisions requiring the other Lenders to purchase a participation therein.  Further, such Revolving A Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, and any other amounts due to it hereunder to the Swingline Lender to fund Swingline Loans in the amount of the Participation Interest in Swingline Loans that such Revolving A Lender failed to purchase pursuant to Section 2.6(d) until such amount has been purchased (as a result of such assignment or otherwise).

 

 

2.9.1.           In the event that the Parent Borrower wishes to increase the Commitment of any Class at any time when no Default or Event of Default has occurred and is continuing, it shall notify the Administrative Agent in writing of the amount (the “ Offered Increase Amount ”) of such proposed increase (such notice, a “ Commitment Increase Notice ”); provided that (i) any such request shall be in a minimum amount of $25,000,000 or such lesser amount as agreed upon by the Parent Borrower and the Administrative Agent, (ii) immediately after giving effect to any increase, the aggregate amount of increases under all Classes pursuant to this Section 2.9 shall not exceed an amount equal to $150,000,000 minus the aggregate amount by which the Aggregate Commitment shall theretofore have been increased pursuant to Section 2.10 , (iii) the Parent Borrower shall not make more than four requests to increase Commitments pursuant to this Section and (iv) no existing Lender shall be obligated to increase its Commitment as a result of any request for a increase by the Parent Borrower unless it agrees in its sole discretion to do so.  The Parent Borrower may, at its election, (x) offer to one or more of the Lenders the opportunity to participate in all or a portion of the Offered Increase Amount pursuant to Section 2.9.3 and/or (y) with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), offer to one or more additional banks, financial institutions or other entities the opportunity to participate in all or a portion of the Offered Increase Amount pursuant to Section 2.9.2 below.

2.9.2.           Any additional bank, financial institution or other entity to which the Parent Borrower offers participation in the Offered Increase Amount and which elects to become a party to this Agreement and provide a Commitment in the amount so offered pursuant to Section 2.9.1(y) shall execute a New Lender Supplement with the Parent Borrower and the Administrative Agent, whereupon such bank, financial institution or other entity (each a “ New Lender ”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and Schedule 1.1(a) shall be deemed to be amended to add the name and Commitment of such New Lender, provided

 

 

that the Commitment of any such new Lender shall be in an amount not less than $15,000,000 or such lesser amount as agreed upon by the Parent Borrower and the Administrative Agent.

2.9.3.           Any Lender which accepts an offer to it by the Parent Borrower to increase its Commitment pursuant to Section 2.9.1 shall, in each case, execute a Commitment Increase Supplement with the Parent Borrower and the Administrative Agent, whereupon such Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule 1.1(a) shall be deemed to be amended to so increase the Commitment of such Lender.

2.9.4.           To the extent necessary to keep the outstanding Loans ratable in the event of any non-ratable increase in the Aggregate Revolving A Commitment or Revolving B Commitment, on the effective date of any such increase, (i) all then outstanding Loans (the “ Initial Loans ”) shall be deemed to be repaid, (ii) immediately after the effectiveness of any such increase, the relevant Borrowers shall be deemed to have made new borrowings (the “ Subsequent Borrowings ”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.3 , (iii) each applicable Lender shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Lender’s pro rata share (calculated after giving effect to the increase) of the Subsequent Borrowings and (z) such Lender’s pro rata share (calculated without giving effect to the increase) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each applicable Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata share (calculated without giving effect to the increase) of the Initial Loans and (z) such Lender’s pro rata share (calculated after giving effect to the increase) of the amount of the Subsequent Borrowings, (v) the applicable Lenders shall be deemed to hold the Subsequent Borrowings ratably in accordance with their respective Revolving A Commitment or Revolving B Commitment, as the case may be (calculated after giving effect to the increase), and (vi) the relevant Borrowers shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto.  The conversion of the Initial Loans pursuant to clause (i) above shall be subject to indemnification by the relevant Borrowers pursuant to the provisions of Section 4.8 if the effective date of any increase occurs other than on the last day of the Interest Period relating thereto.

Section 2.10     New Class of Commitments .  Notwithstanding anything in Section 13.10 or elsewhere in this Agreement to the contrary, in the event the Parent Borrower shall desire to designate after the date hereof as Foreign Subsidiary Borrowers hereunder one or more Subsidiaries organized under the laws of any country outside the United States and shall determine that payments of interest or fees by any such Subsidiary to one or more of the Lenders would be subject to withholding taxes if made under the arrangements provided for herein, the Parent Borrower may request Lenders selected by it and reasonably acceptable to the Administrative Agent that would be able to receive such payments free of withholding taxes to establish hereunder an additional Class of Commitments under which Revolving Credit Loans would be made available to such Foreign Subsidiary Borrowers and, if the Parent Borrower shall so elect, to the Parent Borrower and one or more other Foreign Subsidiary Borrowers, and, subject to the provisions of the following sentence, the Parent Borrower may increase the

 

 

Aggregate Commitments in connection with the establishment of such Class.  Subject to the provisions of this Section 2.10 , any such additional Class of Commitments may be established by a written amendment to this Agreement entered into by the Parent Borrower, the Administrative Agent and each Lender that shall agree to provide a Commitment of such Class, and shall not require the consent of any other Lender; provided , that: (i) the aggregate outstanding principal amount of the new Commitments of any Class established pursuant to this paragraph shall not, without the consent of the Required Lenders, exceed an amount equal to $150,000,000 minus the aggregate amount by which the Aggregate Commitment shall theretofore have been increased pursuant to Section 2.9 ; and (ii) the terms applicable to the Commitments and Revolving Credit Loans of any new Class shall be the same as those applicable to the original Classes except as required or deemed appropriate by the Parent Borrower and the Administrative Agent to make the Commitments and Revolving Credit Loans of such new Class available to the intended Foreign Subsidiary Borrowers.  Any such amendment agreement shall, subject to the preceding sentence, amend the provisions of this Agreement and the other Loan Documents to set forth the terms of such new Class and the Revolving Credit Loans thereunder and make such other amendments to this Agreement as shall be necessary or appropriate in the judgment of the Parent Borrower and the Administrative Agent to make the benefits of this Agreement available to the Lenders participating in such new Class, including without limitation amending Section 13.10 .  Further, any such amendment agreement shall amend the provisions of this Agreement (including Section 4.10 ) as shall be necessary or appropriate in the judgment of the Parent Borrower and the Administrative Agent to ensure that payments by or to Lenders participating in such new Class shall not be subject to withholding taxes imposed by any such foreign country and the United States in effect on the date each such Lender becomes a participant in the new Class.  The Commitments, Loans and borrowings thereof of any Class established pursuant to this Section 2.10  shall constitute Commitments, Loans and Revolving Credit Loans under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the undertakings of the Guarantors to the extent provided in Article X .

2.11.1.     Foreign Subsidiary Borrowers .

(a)           The Parent Borrower may at any time, with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), add as a Revolving Borrower to this Agreement any Foreign Subsidiary upon satisfaction of the conditions specified in Section 5.3 , in which case such Foreign Subsidiary shall for all purposes be a party hereto as a Revolving A Borrower or Revolving B Borrower, as the case may be, as fully as if it had executed and delivered this Agreement.  Subject to Section 2.11.3 , the Administrative Agent shall notify the applicable Lenders in the Class to which such Foreign Subsidiary shall be a Revolving Borrower at least five Business Days prior to granting such consent, and shall withhold such consent if the Required Revolving A Lenders and/or Required Revolving B Lenders, as the case may be, notify the Administrative Agent within five Business Days that they are not permitted by Applicable Law or any other organizational policy to make Loans to the relevant Foreign Subsidiary.  If (i) any Lender shall have notified the

 

 

Administrative Agent that it is not permitted by Applicable Law or any other organizational policy to make Loans to the relevant Foreign Subsidiary and (ii) the Administrative Agent is not required to withhold its consent to the addition of such Foreign Subsidiary as a Foreign Subsidiary Borrower pursuant to the immediately preceding sentence, then such Foreign Subsidiary Borrower shall be added, provided that the Administrative Agent may establish and apply such other rules and procedures as it deems reasonably necessary for the addition of such Foreign Subsidiary Borrower pursuant to, and in a manner consistent with, this Agreement.

(b)           So long as the principal of and interest on any Loans made to any Foreign Subsidiary Borrower under this Agreement shall have been paid in full and all other Obligations of such Foreign Subsidiary Borrower under this Agreement shall have been fully performed, the Parent Borrower may, by not less than five Business Days’ prior notice to the Administrative Agent (which shall promptly notify the relevant Lenders thereof), terminate such Subsidiary’s status as a “Foreign Subsidiary Borrower”.

2.11.2.     Competitive Bid Foreign Subsidiary Borrowers .

(a)           The Parent Borrower may at any time, with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), add as a party to this Agreement any Foreign Subsidiary to be a Foreign Subsidiary Borrower upon satisfaction of the conditions specified in Section 5.3 , in which case such Foreign Subsidiary shall for all purposes be a party hereto as a Foreign Subsidiary Borrower as fully as if it had executed and delivered this Agreement; provided that notwithstanding anything to the contrary contained herein, such Foreign Subsidiary Borrower shall not be permitted to obtain any Revolving Credit Loans, but shall be permitted to obtain Competitive Bid Loans hereunder pursuant to Section 2.5 (a “ Competitive Bid Foreign Subsidiary Borrower ”).  The Administrative Agent shall notify the Lenders at least 5 Business Days prior to granting such consent.  The Administrative Agent may establish other rules and procedures as it deems reasonably necessary in its discretion in order to facilitate the addition of such Competitive Bid Foreign Subsidiary Borrower pursuant to, and in a manner consistent with, this Agreement.

(b)           So long as the principal of and interest on any Loans made to any Competitive Bid Foreign Subsidiary Borrower under this Agreement shall have been paid in full and all other obligations of such Competitive Bid Foreign Subsidiary Borrower under this Agreement shall have been fully performed, the Parent Borrower may, by not less than 5 Business Days’ prior notice to the Administrative Agent (which shall promptly notify the relevant Lenders thereof), terminate such Subsidiary’s status as a “Competitive Bid Foreign Subsidiary Borrower”.

 

 

unless approved by all of the relevant Lenders pursuant to this Section 2.11.3 .  The Administrative Agent shall promptly notify the affected Lenders in the relevant Class to which such proposed currency is to be made available for the borrowing of Revolving Credit Loans, and shall withhold such consent if any Lender in such Class notifies the Administrative Agent within five Business Days of such notice that it is not permitted by Applicable Law or any other organizational policy to make Loans in such currency.  If each of the affected Lenders in the relevant Class consents to the addition of such proposed currency, the definition of “Revolving A Optional Currency” and/or “Revolving B Optional Currency”, as the case may be, and Schedule 1.1(b) shall automatically be deemed amended to reflect the addition of such currency and the Parent Borrower and the Administrative Agent, on behalf of the Required Lenders (or all of the applicable Lenders if required by Section 13.10 ), shall further amend the provisions of this Agreement (including Section 4.1.4 ) as shall be necessary or appropriate to provide for the borrowing, funding, disbursement, computation of interest and repayment of Obligations denominated in such new currency.

(a)           Each Subsidiary Borrower hereby irrevocably appoints the Parent Borrower as the borrowing agent and attorney-in-fact for such Subsidiary Borrower which appointment shall remain in full force and effect unless and until Administrative Agent shall have received prior written notice signed by the Parent Borrower that it has resigned such position.  Each Subsidiary Borrower hereby irrevocably appoints and authorizes the Parent Borrower to (i) provide all notices and instructions under this Agreement and (ii) take such action as the Parent Borrower deems appropriate on its behalf to obtain Loans and to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement.

(b)           Each Borrower hereby severally agrees to indemnify each Lender and the Administrative Agent and hold each Lender and the Administrative Agent harmless against any and all liability, expense, loss or claim of damage or injury, made against the Lenders and the Administrative Agent by such Borrower or by any third party whosoever, arising from or incurred by reason of the Lenders’ or the Administrative Agent’s relying on any instructions of the Parent Borrower on behalf of such Borrower, except that such Borrower will have no liability under this Section 2.12(b) with respect to any liability that has been finally determined by final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Lender or the Administrative Agent.

 

any Revolving A Letter of Credit issued for the account of any Restricted Subsidiary that is not a Credit Party) on any Business Day from the Closing Date to but not including the L/C Termination Date in such form as may be requested by the Parent Borrower (on its own behalf or on behalf of any Restricted Subsidiary) and approved from time to time by such Issuing Lender; provided , that no Issuing Lender shall issue, amend, extend or renew any Revolving A Letter of Credit if, after giving effect to such issuance, amendment, extension or renewal, (i) the Aggregate Revolving A Credit Exposure would exceed the Aggregate Revolving A Commitment or (ii) the Aggregate L/C Obligations would exceed the Aggregate L/C Sublimit.  Each Revolving A Letter of Credit may be denominated in Dollars, Euros, Sterling or in any Revolving A Optional Currency.

3.1.2.           Subject to the terms and conditions hereof, each Issuing Lender, in reliance on the agreements of the other Revolving B Lenders set forth in Section 3.4.2 , agrees to issue letters of credit (“ Revolving B Letters of Credit ”) for the account of the Parent Borrower or any Restricted Subsidiary (it being understood that the Parent Borrower shall be a co-applicant for any Revolving B Letter of Credit issued for the account of a Restricted Subsidiary that is not a Credit Party) on any Business Day from the Closing Date to but not including the L/C Termination Date in such form as may be requested by the Parent Borrower (on its own behalf or on behalf of any Restricted Subsidiary) and approved from time to time by such Issuing Lender; provided , that no Issuing Lender shall issue, amend, extend or renew any Revolving B Letter of Credit if, after giving effect to such issuance, amendment, extension or renewal, (i) the Aggregate Revolving B Credit Exposure would exceed the Aggregate Revolving B Commitment or (ii) the Aggregate L/C Obligations would exceed the Aggregate L/C Sublimit.  Each Revolving B Letter of Credit shall be denominated in Dollars, Euros, Sterling or in any Revolving B Optional Currency.

3.1.3.           Each Letter of Credit shall (a) be a letter of credit issued to support obligations of the Parent Borrower or any of its Restricted Subsidiaries, contingent or otherwise, (b) expire on a date not later than one year after the date of issuance thereof and not later than the date which is five (5) Business Days prior to the Specified Maturity Date, and (c) be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State in which the corporate headquarters of the relevant Issuing Lender is located or such other jurisdiction as is acceptable to the relevant Issuing Lender.  No Issuing Lender shall at any time be obligated to issue any Letter of Credit hereunder if such issuance violates any order, judgment or decree of any Governmental Authority that by its terms enjoins or restrains the issuance of such Letter of Credit or any Applicable Law applicable to such Issuing Lender, the Administrative Agent or any Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over it shall prohibit, or request that it refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon it or any Lender with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuing Lender or any Lender is not otherwise compensated), or any unreimbursed loss, cost or expense which was not applicable or in effect as of the Closing Date.  References herein to “issue” and derivations thereof with respect to Letters of Credit shall also include any amendment, extension, renewal or increase in the stated amount of any existing Letters of Credit, unless the context otherwise requires.

 

 

3.1.4.            Allocation of Letters of Credit .  Each Letter of Credit that is denominated in Dollars may, as requested by the Parent Borrower, be converted from one Type to another Type, and such determination, shall be binding on the Lenders.  Such determination may be changed from time to time so long as at the time of any such determination, the conditions specified in Section 5.2 hereof have been satisfied or waived in writing by the Administrative Agent on behalf of the Required Lenders as of the date of such determination.  The Parent Borrower shall give notice to the Administrative Agent of any such determination at the time of its request for the issuance of any Letter of Credit and of any change in such determination at the time thereof.

The Parent Borrower may from time to time request that any Issuing Lender issue a Letter of Credit (or amend, extend or renew an outstanding Letter of Credit) by delivering to such Issuing Lender at any address mutually acceptable to the Parent Borrower and such Issuing Lender an L/C Application therefor, completed to the satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request.  The L/C Application will contain a representation and warranty that the conditions specified in Section 5.2 hereof (and Section 5.3 if applicable) have been satisfied or waived in writing by the Administrative Agent on behalf of the Required Lenders as of the date of the L/C Application.  Upon receipt of any L/C Application, such Issuing Lender shall process such L/C Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall, subject to Section 3.1 , this Section 3.2 and Article V hereof, promptly issue the Letter of Credit (or amend, extend or renew the outstanding Letter of Credit) requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit (or amend, extend or renew an outstanding Letter of Credit) earlier than three (3) Business Days after its receipt of the L/C Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by such Issuing Lender and the Parent Borrower.  Within fifteen (15) Business Days after the end of each calendar quarter, each Issuing Lender (or the Administrative Agent if the Administrative Agent agrees to undertake such action) shall report to each Lender all Letters of Credit issued by it during the previous calendar quarter and the average daily undrawn and unexpired amounts for all Letters of Credit for each day in such calendar quarter.  Each Issuing Lender (or the Administrative Agent if the Administrative Agent agrees to undertake such action) shall calculate the Dollar Equivalent of each outstanding Letter of Credit denominated in Euros, Sterling or any Optional Currency as of the end of each calendar month and shall notify the Administrative Agent and the Parent Borrower of such calculation, and such calculation shall be the basis of any determination of the amount of outstanding Revolving A L/C Obligations and Revolving B L/C Obligations for purposes hereof until the next such calculation.

 

Dollars with respect to each Revolving A Letter of Credit issued by any Issuing Lender in an amount determined as follows:

(a)           as to Performance Letters of Credit, the Dollar Equivalent of the average daily undrawn amount of such issued Letters of Credit times 50% of the Applicable Percentage for Eurocurrency Rate Loans then in effect; and

(b)           as to Financial Letters of Credit, the Dollar Equivalent of the average daily undrawn amount of such issued Letters of Credit times the Applicable Percentage for Eurocurrency Rate Loans then in effect.

3.3.2.           The Parent Borrower agrees to pay to the Administrative Agent, for the account of each Revolving B Lender, a letter of credit fee (the “ Revolving B L/C Fee ”) in Dollars with respect to each Revolving B Letter of Credit issued by any Issuing Lender in an amount determined as follows:

(a)           as to Performance Letters of Credit, the Dollar Equivalent of the average daily undrawn amount of such issued Letters of Credit times 50% of the Applicable Percentage for Eurocurrency Rate Loans then in effect; and

(b)           as to Financial Letters of Credit, the Dollar Equivalent of the average daily undrawn amount of such issued Letters of Credit times the Applicable Percentage for Eurocurrency Rate Loans then in effect.

The L/C Fees shall be calculated quarterly in arrears on the last Business Day of each calendar quarter and payable on the third Business Day following such date, commencing on the first of such dates to occur after the Closing Date, and on the Termination Date.

3.3.3.           The Administrative Agent shall, promptly following its receipt thereof, distribute to the Revolving A Lenders the Revolving A L/C Fee received by the Administrative Agent in accordance with their respective Revolving A Ratable Share. The Administrative Agent shall, promptly following its receipt thereof, distribute to the Revolving B Lenders the Revolving B L/C Fee received by the Administrative Agent in accordance with their respective Revolving B Ratable Share.

3.3.4.           In addition to the L/C Fees, the Parent Borrower agrees to pay to any Issuing Lender that has issued a Letter of Credit at the request of the Parent Borrower, for such Issuing Lender’s own account, (i) a fronting fee in an amount per annum equal to the lesser of (A) a percentage agreed upon between the Parent Borrower and each Issuing Lender and (B) 0.125%, multiplied by the Dollar Equivalent of the aggregate stated amount of such Letter of Credit for the stated duration thereof, and (ii) customary charges of such Issuing Lender with respect to the issuance, amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit.

 

 

hereunder, each Revolving A Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions hereinafter stated, for such Revolving A Lender’s own account and risk, an undivided interest equal to its Revolving A Ratable Share of such Issuing Lender’s obligations and rights under each Revolving A Letter of Credit issued hereunder and the amount of each draft paid by such Issuing Lender thereunder.  Each Revolving A Lender unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is paid under any Revolving A Letter of Credit for which such Issuing Lender is not reimbursed in full by the Parent Borrower in accordance with the terms of this Agreement, such Revolving A Lender shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such Revolving A Lender’s Ratable Share of the amount of such draft, or any part thereof, which is not so reimbursed.

3.4.2.           Each Issuing Lender irrevocably agrees to grant and hereby grants to each Revolving B Lender, and, to induce such Issuing Lender to issue Revolving B Letters of Credit hereunder, each Revolving B Lender irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions hereinafter stated, for such Revolving B Lender’s own account and risk, an undivided interest equal to its Revolving B Ratable Share of such Issuing Lender’s obligations and rights under each Revolving B Letter of Credit issued hereunder and the amount of each draft paid by such Issuing Lender thereunder. Each Revolving B Lender unconditionally and irrevocably agrees with each Issuing Lender that, if a draft is paid under any Revolving B Letter of Credit for which such Issuing Lender is not reimbursed in full by the Parent Borrower in accordance with the terms of this Agreement, such Revolving B Lender shall pay to such Issuing Lender upon demand at such Issuing Lender’s address for notices specified herein an amount equal to such Revolving B Lender’s Ratable Share of the amount of such draft, or any part thereof, which is not so reimbursed.

3.4.3.           Upon becoming aware of any amount required to be paid by any Lender to any Issuing Lender pursuant to Section 3.4.1 or Section 3.4.2 in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit, the Administrative Agent shall notify each Revolving A Lender, in the case of Revolving A Letters of Credit, or each Revolving B Lender, in the case of Revolving B Letters of Credit, of the amount and due date of such required payment and such Lender shall pay to such Issuing Lender the amount specified on the applicable due date.  If any such amount is paid to such Issuing Lender after the date such payment is due, such Lender shall pay to such Issuing Lender on demand, in addition to such amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate as determined by the Administrative Agent during the period from and including the date such payment is due to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360.  A certificate of any Issuing Lender with respect to any amounts owing under this Section 3.4.3 shall be conclusive in the absence of manifest error.  With respect to payment to any Issuing Lender of the unreimbursed amounts described in this Section 3.4.3 , if the relevant Lenders receive notice that any such payment is due (A) prior to 1:00 p.m. (Charlotte, North Carolina time) on any Business Day, such payment shall be due that Business Day, and (B) after 1:00 p.m. (Charlotte, North Carolina time) on any Business Day, such payment shall be due on the following Business Day.

 

 

3.4.4.           Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any Lender the Revolving A Ratable Share or Revolving B Ratable Share, as applicable, of such payment in accordance with this Section 3.4 , such Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Parent Borrower or otherwise, or any payment of interest on account thereof), such Issuing Lender will distribute to such Lender its Revolving A Ratable Share or Revolving B Ratable Share, as applicable; provided , that in the event that any such payment received by such Issuing Lender shall be required to be returned by such Issuing Lender, such Lender shall return to such Issuing Lender the portion thereof previously distributed by such Issuing Lender to it.

Each relevant Revolving Borrower agrees to reimburse the relevant Issuing Lender on each date such Issuing Lender or the Administrative Agent notifies such Revolving Borrower of the date and amount of a draft paid under any Letter of Credit requested by the Parent Borrower for the account of such Revolving Borrower for the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender in connection with such payment.  Each such payment shall be made to the appropriate Issuing Lender at its address for notices specified herein in the currency in which such Letter of Credit is denominated (except that, in the case of any Letter of Credit denominated in Euros, Sterling or any Optional Currency, in the event that such payment is not made to the Issuing Lender on the date of receipt by such Revolving Borrower of such notice, such payment shall be made in Dollars, in an amount equal to the Dollar Equivalent of the amount of such payment) and in immediately available funds.  Interest shall be payable on any and all amounts remaining unpaid by such Borrower under this Article III from the date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until payment in full at the Alternate Base Rate plus 2%.  If such Borrower fails to timely reimburse such Issuing Lender on the date such Revolving Borrower receives the notice referred to in this Section 3.5 , such Issuing Lender shall promptly notify the Administrative Agent of such failure, and such Revolving Borrower shall be deemed to have timely given a Notice of Borrowing pursuant to Section 2.2 (without regard to the minimum and multiples specified in Section 2.2.2 ) to the Administrative Agent requesting the Lenders to make an Alternate Base Rate Loan under the Revolving A Credit Facility or the Revolving B Credit Facility, as applicable, on such date in Dollars in an amount equal to the Dollar Equivalent of the amount of such draft paid, together with any taxes, fees, charges or other costs or expenses incurred by such Issuing Lender and to be reimbursed pursuant to this Section 3.5  and, regardless of whether or not the conditions precedent specified in Article V have been satisfied, the applicable Lenders shall make Alternate Base Rate Loans in such amount, the proceeds of which shall be applied to reimburse such Issuing Lender for the amount of the related drawing and costs and expenses.  Any conversion by any Issuing Lender of any payment to be made by such Revolving Borrower in respect of any Letter of Credit denominated in Euros, Sterling or any Optional Currency into Dollars in accordance with this Section 3.5 (using the conversion mechanism set forth in the definition of Dollar Equivalent) shall be conclusive and binding upon such Revolving Borrower and the Lenders in the absence of manifest error; provided that upon the request of any Lender, the Issuing Lender shall provide to such Lender a certificate including reasonably detailed information as to the calculation of such conversion.  Notwithstanding the foregoing, nothing in this Section 3.5 shall obligate the

 

 

 Lenders to make such Alternate Base Rate Loans if the making of such Alternate Base Rate Loans would violate the automatic stay under the Bankruptcy Code.

Each Revolving Borrower’s obligations under this Article III (including without limitation the Reimbursement Obligation) shall be absolute, unconditional and irrevocable under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment which such Revolving Borrower may have or have had against any Issuing Lender or any beneficiary or transferee of a Letter of Credit (or any person for whom any such beneficiary or any such transferee may be acting).  Each Revolving Borrower also agrees with each Issuing Lender that no Issuing Lender shall be responsible for, and such Revolving Borrower’s Reimbursement Obligation under Section 3.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent, forged or insufficient in any respect, or any dispute between or among such Revolving Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of such Revolving Borrower against any beneficiary of such Letter of Credit or any such transferee.  No Issuing Lender shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message, advice, or document, however transmitted, in connection with any Letter of Credit, except for errors or omissions caused by such Issuing Lender’s gross negligence or willful misconduct.  Each Revolving Borrower agrees that any action taken or omitted by any Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Customs and, to the extent not inconsistent therewith, the UCC, shall be binding on such Revolving Borrower and shall not result in any liability of such Issuing Lender to such Revolving Borrower.  The responsibility of each Issuing Lender to such Revolving Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are in conformity with such Letter of Credit.

If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender shall promptly notify the Parent Borrower and the relevant Subsidiary Borrower (if applicable) of the date and the Dollar Equivalent of the amount thereof.

 

 

ARTICLE IV

GENERAL LOAN PROVISIONS

4.1.1.            Interest Rate Options .

(a)           Subject to the provisions of this Section 4.1 , at the election of the Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower), the aggregate principal balance of any Dollar Revolving Loan shall bear interest at (i) the Alternate Base Rate plus the Applicable Percentage for Alternate Base Rate Loans or (ii) the Eurocurrency Rate plus the Applicable Percentage for Eurocurrency Rate Loans; provided that such interest rate shall be increased by any amount required pursuant to Section 4.1.6 .  The Parent Borrower (on its own behalf or on behalf of the relevant Subsidiary Borrower) shall select the rate of interest and Interest Period, if any, applicable to any Revolving Credit Loan at the time a Notice of Borrowing is given pursuant to Section 2.2 or at the time a Notice of Conversion/Continuation is given pursuant to Section 2.3 .  Any Dollar Revolving Loan or any portion thereof as to which the Parent Borrower has not duly specified an interest rate as provided herein shall be deemed an Alternate Base Rate Loan.

(b)           The aggregate principal balance of any Revolving Loan denominated in Euros, Sterling or any Optional Currency shall bear interest at the Eurocurrency Rate plus the Applicable Percentage for Eurocurrency Rate Loans; provided that such interest rate shall be increased by any amount required pursuant to Section 4.1.6 .  The Parent Borrower shall select the Interest Period applicable to any Revolving Loan denominated in Euros, Sterling or any Optional Currency at the time a Notice of Borrowing is given pursuant to Section 2.2 or at the time a Notice of Conversion/Continuation is given pursuant to Section 2.3 .

(c)           A Competitive Bid Loan will bear interest at the Competitive Bid Rate specified in the Competitive Bid accepted by the Parent Borrower with respect to such Competitive Bid Loan.

(d)           All Swingline Loans will bear interest at the LIBOR Market Index Rate plus the Applicable Percentage for Eurocurrency Rate Loans.

4.1.2.            Interest Periods .  In connection with each Eurocurrency Rate Loan and each Competitive Bid Loan, the Parent Borrower, by giving notice at the times described in Section 4.1.1 , shall elect an interest period (each, an “ Interest Period ”) to be applicable to such Revolving Credit Loan or such Competitive Bid Loan, which Interest Period shall, unless otherwise agreed by the Administrative Agent and the Lenders, be a period of one, two, three, or six months with respect to each Eurocurrency Rate Loan, and a period of one day to 183 days with respect to each Competitive Bid Loan; provided that:

 

(b)           subject to clause (d) below, if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period shall expire on the next preceding Business Day;

(c)           subject to clause (d) below, any Interest Period with respect to a Eurocurrency Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such Interest Period; and

(d)           no Interest Period shall extend beyond the Termination Date.

4.1.3.            Default Rate .  Notwithstanding the foregoing provisions of this Section 4.1  but subject to Section 4.1.5 , if any principal of or interest on any Loan or any fee or other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the foregoing provisions of this Section 4.1 , or (ii) in the case of any other amount, 2% plus the rate applicable to Alternate Base Rate Loans made in the United States as provided in Section 4.1.1(a) .  Interest shall continue to accrue on the amount of Loans outstanding after the filing by or against any Borrower of any petition seeking any relief in bankruptcy or under any act or law pertaining to insolvency or debtor relief, whether state, federal or foreign.

4.1.4.     Interest Payment and Computation .

(a)           Interest on each Alternate Base Rate Loan and Swingline Loan shall be payable by the relevant Borrower in arrears on the last Business Day of each calendar quarter commencing on the first of such dates to occur after the Closing Date, and interest on each Eurocurrency Rate Loan and Competitive Bid Loan shall be payable by the relevant Borrower in arrears on the last day of each Interest Period applicable thereto, and if such Interest Period exceeds three (3) months, at the end of each three (3) month interval during such Interest Period, provided that (i) interest accrued pursuant to Section 4.1.3 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an Alternate Base Rate Loan prior to the Termination Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(b)           Interest on all Loans and all fees payable hereunder shall be computed on the basis of a 360-day year and assessed for the actual number of days elapsed; provided that interest on Loans bearing interest at a rate based upon the Prime Rate and Loans denominated in Sterling, Australian Dollars, Hong Kong Dollars or Canadian Dollars shall be computed on the basis of a 365- or 366-day year, as applicable.

 

 

4.1.5.            Maximum Rate .  In no contingency or event whatsoever shall the aggregate of all amounts deemed interest hereunder charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto.  In the event that such a court determines that the Lenders have charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall autom