SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.1

EXECUTION COPY

 

SECOND AMENDED AND RESTATED

CREDIT AGREEMENT

dated as of

April 3, 2009,

among

SEAGATE TECHNOLOGY,

SEAGATE TECHNOLOGY HDD HOLDINGS,

as Borrower,

The Lenders Party Hereto,

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,

MORGAN STANLEY SENIOR FUNDING, INC.,

as Syndication Agent,

and

BNP PARIBAS,

KEYBANK NATIONAL ASSOCIATION,

WACHOVIA BANK, NATIONAL ASSOCIATION and

THE BANK OF NOVA SCOTIA,

as Co-Documentation Agents

 

J.P. MORGAN SECURITIES INC.

and

MORGAN STANLEY SENIOR FUNDING, INC.

as Joint Bookrunners and Joint Lead Arrangers

 

 

TABLE OF CONTENTS

 

 

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 3, 2009 (this “ Agreement ”), among SEAGATE TECHNOLOGY, an exempted limited liability company incorporated under the laws of the Cayman Islands (“ Intermediate Holdings ”), SEAGATE TECHNOLOGY HDD HOLDINGS, an exempted limited liability company incorporated under the laws of the Cayman Islands (the “ Borrower ”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

WHEREAS, Intermediate Holdings, Borrower, the lenders named therein and JPMorgan Chase Bank, N.A., as Administrative Agent, were parties to the Credit Agreement dated as of November 22, 2005 (as modified and supplemented and in effect immediately prior to the First Restatement Effective Date (such term, and each other capitalized term used herein but not otherwise defined, having the meaning set forth in Section 1.01), the “ Original Credit Agreement ”).

WHEREAS, the Original Credit Agreement was amended and restated on the First Restatement Effective Date in the form of the Amended and Restated Credit Agreement dated as of September 19, 2006 (as modified and supplemented and in effect immediately prior to the Second Restatement Effective Date, the “ First Restated Credit Agreement ”).

WHEREAS, the parties hereto now wish to make certain amendments to the First Restated Credit Agreement and, as so amended, to restate the First Restated Credit Agreement in its entirety. Accordingly, the parties hereto agree that the First Restated Credit Agreement shall, as of the Second Restatement Effective Date (the occurrence of which is subject to satisfaction of the conditions precedent specified in Section 4.01), be amended and restated to read in its entirety as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“ ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“ Adjusted LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (except in the case of the determination of the Adjusted LIBO Rate for purposes of clause (c) of the definition of the term “Alternate Base Rate”, rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“ Administrative Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity as provided in Article VIII.

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

“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate of a Person solely by reason of his or her being an officer or director of such Person.

“ Agreement ” has the meaning assigned to such term in the preamble to this Agreement.

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus   ¹ / 2 of 1% and (c) the Adjusted LIBO Rate for a one-month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate appearing on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest Rate Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on such day (it being understood and agreed that this clause (c) shall be effective only for determinations of the Alternate Base Rate on any day occurring on or after the Second Restatement Effective Date). Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.

“ Alternative Currency ” means any currency that is freely available, freely transferable and freely convertible into dollars and in which dealings in deposits are carried on in the New York, London or Tokyo interbank markets, provided that such currency is reasonably acceptable to the Administrative Agent and the applicable Issuing Bank.

“ Alternative Currency LC Exposure ” means, at any time, the sum of (a) the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding Alternative Currency Letters of Credit at such time plus (b) the Dollar Equivalent of the aggregate principal amount of all LC Disbursements in respect of Alternative Currency Letters of Credit that have not yet been reimbursed at such time.

 

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“ Alternative Currency Letter of Credit ” means a Letter of Credit denominated in an Alternative Currency.

“ Amendment Fees ” has the meaning assigned to such term in Section 2.11(d).

“ Applicable Margin ” means, for any day (a) prior to the Second Restatement Effective Date, the Applicable Margin (as defined in the First Restated Credit Agreement) and (b) on and after the Second Restatement Effective Date, (i) with respect to any Eurodollar Loan, 3.50% per annum, (ii) with respect to any ABR Loan, 2.50% per annum and (iii) with respect to the commitment fees payable hereunder, 0.50% per annum.

“ Applicable Percentage ” means, at any time with respect to any Lender, the percentage of the aggregate Commitments represented by such Lender’s Commitment at such time. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments after such termination or expiration.

“ Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit A or any other form approved by the Administrative Agent.

“ Availability Period ” means the period from and including the First Restatement Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Borrower ” has the meaning assigned to such term in the preamble to this Agreement.

“ Borrowing ” means Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“ Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.03.

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed, provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

 

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“ Calculation Date ” means (a) the last Business Day of each calendar month and (b) if on the last Business Day of any calendar week the total Revolving Exposures exceed 75% of the total Commitments (giving effect to any reductions in the Commitments scheduled to occur on such day), such Business Day.

“ Capital Expenditures ” means, for any period, without duplication, (a) the additions to property, plant and equipment and other capital expenditures of Intermediate Holdings, the Borrower and the Subsidiaries that are (or would be) set forth in a consolidated statement of cash flows of Intermediate Holdings for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by Intermediate Holdings, the Borrower and the Subsidiaries during such period, provided that the term “Capital Expenditures” (i) shall be net of landlord construction allowances, (ii) shall not include expenditures to the extent they are made with the proceeds of the issuance of Equity Interests of Intermediate Holdings, the Borrower or any Subsidiary after the Initial Effective Date, (iii) shall not include expenditures of proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire properties useful in the business of Intermediate Holdings, the Borrower or any Subsidiary within 365 days of receipt of such proceeds, (iv) shall not include the purchase price of equipment to the extent the consideration therefor consists of used or surplus equipment being traded in at such time or the proceeds of a concurrent sale of such used or surplus equipment, in each case in the ordinary course of business, and (v) shall not include expenditures to the extent they are made with the proceeds of sales of assets outside the ordinary course of business that are permitted by Section 6.05.

“ Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“ Cash Management Obligations ” has the meaning assigned to such term in clause (c) of the definition of the term “Obligations”.

“ Cash-Pay Preferred Equity ” means any preferred shares or other preferred Equity Interests that are issued by Intermediate Holdings and that require the payment of mandatory cash dividends.

“ Cayman Pledge Agreement ” means a Share Mortgage, substantially in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit D-2 , between each Loan Party that owns Equity Interests of any Subsidiary organized under the laws of the Cayman Islands that would constitute Collateral if such Loan Party executed a Cayman Pledge Agreement and the Administrative Agent for the benefit of the Secured Parties.

 

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“ Cayman Security Agreement ” means a Deed of Charge, substantially in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit C-2 , between each Loan Party that is incorporated or organized under the laws of the Cayman Islands or that owns material Collateral located in the Cayman Islands and the Administrative Agent for the benefit of the Secured Parties.

“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.

“ CFC Subsidiary ” means, with respect to any U.S. Subsidiary, a subsidiary of such U.S. Subsidiary that is a controlled foreign corporation within the meaning of Section 957 of the Code and any wholly-owned Subsidiary of such controlled foreign corporation that is treated as a disregarded entity for U.S. Federal income tax purposes.

“ Change in Control ” means:

(a) the acquisition of direct ownership, beneficially or of record, by any Person other than Intermediate Holdings of any Equity Interests in the Borrower;

(b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests in Intermediate Holdings representing greater than 35% of the aggregate ordinary voting power and aggregate equity value represented by the issued and outstanding Equity Interests in Intermediate Holdings;

(c) occupation of a majority of the seats (other than vacant seats) on the board of directors of Intermediate Holdings or the Borrower by Persons who were neither (i) nominated by at least a majority of the board of directors of Intermediate Holdings or the Borrower, as applicable, nor (ii) appointed by a vote of a majority of directors so nominated; or

(d) the occurrence of a “Change in Control” as defined in the Senior Note Documents or any document governing or evidencing any extension, renewal, refinancing or replacement of the Senior Notes permitted pursuant to Section 6.01(a)(ii).

“ Change in Law ” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

 

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“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

“ Collateral ” means any and all “Collateral”, as defined in any applicable Security Document.

“ Collateral and Guarantee Requirement ” means, at any time, the requirement that:

(a) the Administrative Agent shall have received from each Loan Party a counterpart of each of (i) the applicable Guarantee Agreement, (ii) in the case of any Loan Party that executes the U.S. Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement, (iii) in the case of any Loan Party that owns any Equity Interests in any Subsidiary that is organized under the laws of the United States of America (including any State thereof and the District of Columbia) that would constitute Collateral if such Loan Party executed the U.S. Pledge Agreement, the U.S. Pledge Agreement, (iv) in the case of any Loan Party that is a U.S. Loan Party or that owns any material Collateral located in the United States of America (including any State thereof and the District of Columbia), the U.S. Security Agreement, (v) in the case of any Loan Party that owns any Equity Interests in any Subsidiary that is organized under the laws of the Cayman Islands that would constitute Collateral if such Loan Party executed a Cayman Pledge Agreement, a Cayman Pledge Agreement, (vi) in the case of any Loan Party that is organized under the laws of the Cayman Islands or owns any material Collateral located in the Cayman Islands, a Cayman Security Agreement, and (vii) in the case of any Loan Party that (A) owns any Equity Interests in any Subsidiary that is organized under the laws of Singapore, the Netherlands or Northern Ireland, or (B) that is organized under the laws of Singapore, the Netherlands or Northern Ireland or owns any material Collateral located in Singapore, the Netherlands or Northern Ireland, the applicable Foreign Security Agreement;

(b) (i) all outstanding Equity Interests of the Borrower, (ii) to the extent owned directly by any Loan Party, all outstanding Equity Interests of each Subsidiary organized under the laws of any of the Collateral Jurisdictions and (iii) all outstanding Equity Interests of each Subsidiary owned by a Loan Party that is organized under the laws of any of the Collateral Jurisdictions, in each case shall have been pledged pursuant to the applicable Security Document and, unless the Administrative Agent shall otherwise agree, the Administrative Agent shall have received certificates or other instruments representing all such Equity Interests that are in certificated form, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(c) all Indebtedness for borrowed money of Intermediate Holdings, the Borrower and each Subsidiary that is owing to any Loan Party organized under the laws of any of the Collateral Jurisdictions shall be evidenced by a promissory note and shall have been pledged pursuant to the applicable Security Document and, unless the Administrative Agent shall otherwise agree, the Administrative Agent shall have received all such promissory notes, together with instruments of transfer with respect thereto endorsed in blank;

 

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(d) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to (i) create the Liens intended to be created by the Security Documents and (ii) perfect such Liens to the extent required by, and with the priority required by, the applicable Security Document, shall have been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording;

(e) the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage in respect of a Mortgaged Property located in the United States of America (including any State thereof and the District of Columbia) or, if reasonably requested by the Administrative Agent and available on commercially reasonable terms (and to the extent customarily delivered in connection with secured financings in the relevant jurisdiction), outside the United States of America as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.02, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request, and (iii) such survey affidavits and other documents as the Administrative Agent may reasonably request with respect to any such Mortgage or Mortgaged Property and as are customarily delivered in connection with secured financings in the relevant jurisdiction; and

(f) within 30 days after the request therefor by the Administrative Agent (or such longer period as the Administrative Agent may agree in its discretion), the Borrower shall have delivered to the Administrative Agent a signed copy of an opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to such matters set forth in this definition as the Administrative Agent may reasonably request.

Notwithstanding anything in this definition to the contrary, (i) none of Intermediate Holdings, the Borrower or any Subsidiary shall be required to enter into any Security Document that is prepared under and governed by the laws of any jurisdiction other than the Collateral Jurisdictions or to take any action to perfect the security interests created under such Security Documents except as necessary under the laws of the applicable Collateral Jurisdiction in order to perfect such security interests, (ii) no Guarantee by any Person or security interest with respect to any asset shall be required pursuant to this definition if the Administrative Agent determines, after consultation with the Borrower, that (A) providing such Guarantee or taking a security interest in such asset would (x) violate the law of the jurisdiction in which such asset is located or the law of the jurisdiction where the Person providing such Guarantee or owning such asset is organized, (y) violate the terms of any material contract binding on Intermediate Holdings, the Borrower or any Subsidiary (but only to the extent that the restrictions in all such contracts, taken as a whole, do not materially limit the Collateral that would otherwise be pledged pursuant to the Collateral and Guarantee Requirement and Section 5.13(c) to secure the Obligations) or (z) result in a material adverse tax consequence to the Person providing such Guarantee or granting such security interest or (B) the cost to

 

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Intermediate Holdings, the Borrower or any Subsidiary of providing such Guarantee or granting and perfecting a Lien in such asset would be excessive in view of the related benefits to be received by the Lenders therefrom, (iii) no Obligation of any U.S. Loan Party shall be required to be Guaranteed by, or supported by a security interest with respect to any asset of, any CFC Subsidiary or any Qualified CFC Holding Company, in each case of any U.S. Subsidiary and (iv) (A) the pledge of Equity Interests of any CFC Subsidiaries of a U.S. Subsidiary to secure the Obligations of any U.S. Loan Party shall not include (x) more than 65% of the outstanding voting Equity Interests of each “first tier” CFC Subsidiary directly owned by such U.S. Subsidiary or (y) any Equity Interests of any CFC Subsidiary of such U.S. Subsidiary that is not a “first tier” CFC Subsidiary of such U.S. Subsidiary and (B) the pledge of Equity Interests of any Qualified CFC Holding Company of any U.S. Subsidiary to secure the Obligations of any U.S. Loan Party shall not include (x) more than 65% of the outstanding voting Equity Interests of each “first tier” Qualified CFC Holding Company directly owned by such U.S. Subsidiary and (y) any Equity Interests of any Qualified CFC Holding Company of such U.S. Subsidiary that is not a “first tier” Qualified CFC Holding Company of such U.S. Subsidiary.

“ Collateral Jurisdictions ” means the United States of America (including any State thereof and the District of Columbia), the Cayman Islands, Singapore, the Netherlands and Northern Ireland.

“ Commitment ” means, with respect to each Lender, the commitment of such Lender to make Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 or Section 2.10 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments is $500,000,000, provided that, immediately prior to the Second Restatement Effective Date, the Borrower shall be deemed to have delivered a notice pursuant to Section 2.08 of the First Restated Credit Agreement requesting a reduction in the aggregate Commitments to $350,000,000 in accordance with the terms of such Section, which reduction shall become effective as of the Second Restatement Effective Date.

“ Commitment Reduction Event ” means:

(a) any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction other than a sale and leaseback transaction permitted by Section 6.05(j)) of any property or asset of Intermediate Holdings, the Borrower or any Subsidiary, other than (i) dispositions permitted by clauses (a), (b), (c), (d), (e), (f), (h) or (k) of Section 6.05 and (ii) other dispositions resulting in aggregate Net Proceeds not exceeding $25,000,000 for all such dispositions on and after the Second Restatement Effective Date; or

 

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(b) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Intermediate Holdings, the Borrower or any Subsidiary, other than with respect to property or assets having an aggregate fair market value not exceeding $25,000,000 for all such damages and proceedings on and after the Second Restatement Effective Date; or

(c) the incurrence by Intermediate Holdings, the Borrower or any Subsidiary of (i) any Indebtedness for borrowed money in accordance with Section 6.01 that is secured by a Lien pursuant to Section 6.02(g) or 6.02(h), other than such incurrences resulting in aggregate Net Proceeds not exceeding $430,000,000 for all such incurrences on and after the Second Restatement Effective Date and (ii) any Indebtedness of the type described in clauses (a) and (b) of the definition thereof (but excluding any Indebtedness referenced in subclause (i) of this clause (c)) in accordance with Section 6.01, other than such incurrences resulting in aggregate Net Proceeds not exceeding $350,000,000 for all such incurrences on and after the Second Restatement Effective Date; or

(d) any sale, transfer or other disposition of Receivables or Related Assets pursuant to any Permitted Receivables Financing in the form of an asset-backed commercial paper program or any other similarly-structured receivables financing program, other than such dispositions resulting in aggregate Net Proceeds not exceeding $150,000,000 for all such dispositions on and after the Second Restatement Effective Date; or

(e) the issuance by Intermediate Holdings of any Equity Interests, or the receipt by Intermediate Holdings of any capital contribution (other than any such issuance of Equity Interests to management or employees of Intermediate Holdings, the Borrower or any Subsidiary under any employee stock option or stock purchase plan or other employee benefit plan in existence from time to time), other than such issuances or contributions resulting in aggregate Net Proceeds not exceeding $500,000,000 for all such issuances and contributions on and after the Second Restatement Effective Date.

“ Consolidated Cash Interest Expense ” means, for any period, the excess of (a) the sum of (i) the interest expense (including imputed interest expense in respect of Capital Lease Obligations and the implied interest in respect of Permitted Receivables Financings) of Intermediate Holdings, the Borrower and the Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus (ii) any interest accrued during such period in respect of Indebtedness of Intermediate Holdings, the Borrower or any Subsidiary that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP, plus (iii) any cash payments made during such period in respect of obligations referred to in clause (b)(ii) below that were amortized or accrued in a previous period, plus (iv) to the extent not otherwise included, commissions, discounts, yields and other fees, charges and amounts incurred in connection with any Permitted Receivables Financing during such period that are payable to any Person other than Intermediate Holdings, the Borrower or

 

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any Subsidiary and any other amounts for such period that are comparable to or in the nature of interest under any Permitted Receivables Financing (including losses on the sale of assets relating to any Permitted Receivables Financing accounted for as a “true sale”), minus (b) the sum of (i) to the extent included in such consolidated interest expense for such period, non-cash amounts attributable to amortization of financing costs paid in a previous period, plus (ii) to the extent included in such consolidated interest expense for such period, non-cash amounts attributable to amortization of debt discounts or accrued interest or dividends payable in kind for such period.

“ Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense for such period (including, to the extent not otherwise included in consolidated interest expense for such period, commissions, discounts, yields and other fees, charges and amounts incurred during such period in connection with any Permitted Receivables Financing that are payable to any Person other than Intermediate Holdings, the Borrower or any Subsidiary and any other amounts for such period comparable to or in the nature of interest under any Permitted Receivables Financing (including losses on the sale of assets relating to any Permitted Receivables Financing accounted for as a “true sale”)), (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) all extraordinary charges during such period, (v) non-cash expenses during such period resulting from (A) the grant of stock or stock options to management and employees of Intermediate Holdings, the Borrower or any Subsidiary or (B) the treatment of such options under variable plan accounting, (vi) the aggregate amount of deferred financing expenses for such period, (vii) all other non-cash charges, non-cash expenses or non-cash losses of Intermediate Holdings, the Borrower or any Subsidiary for such period (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period); provided , however , that cash payments made in such period or in any future period (other than payments made under the terms of the Deferred Compensation Plans to, or for the benefit of, participants in such Deferred Compensation Plans) in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made, and (viii) any non-recurring fees, expenses or charges realized by Intermediate Holdings, the Borrower or any Subsidiary for such period related to any offering of Equity Interests or incurrence of Indebtedness permitted to be issued or incurred under Section 6.01 (whether or not successful) or any acquisitions or dispositions by Intermediate Holdings, the Borrower or any Subsidiary permitted hereunder and fees, expenses and charges related to the execution, delivery and performance of the Loan Documents by Intermediate Holdings and the Borrower, and minus (b) without duplication and to the extent included in determining such Consolidated Net Income, (i) any extraordinary gains for such period, (ii) interest income for such period and (iii) all non-cash items increasing Consolidated Net Income for such period (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to

 

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clause (a)(vii) above), all determined on a consolidated basis in accordance with GAAP. For purposes of calculating the Net Leverage Ratio or the Fixed Charge Coverage Ratio as of any date, if Intermediate Holdings, the Borrower or any Subsidiary has made any Material Acquisition permitted by Section 6.04 or any Material Sale outside of the ordinary course of business permitted by Section 6.05 during the period of four consecutive fiscal quarters ending on the date on which the most recent fiscal quarter ended, Consolidated EBITDA for the relevant period for testing compliance shall be calculated after giving pro forma effect thereto, as if such Material Acquisition or Material Sale outside of the ordinary course of business (and any related incurrence, repayment or assumption of Indebtedness with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of the relevant period for testing compliance. Any pro forma calculations pursuant to the immediately preceding sentence shall be determined in good faith by a Financial Officer of the Borrower and may include adjustments (A) for all purposes under this Agreement, for operating expense reductions that would be permitted pursuant to Article XI of Regulation S-X under the Securities Act of 1933, as amended, or (B) for all purposes under this Agreement other than for purposes of determining whether any acquisition complies with clause (p)(i)(B) of Section 6.04, to eliminate the actual, historical operating expenses attributable to any lease or other contract, any personnel or any facility as a direct result of the termination of such lease or other contract, the termination of such personnel or the closing of such facility, in each case only if such termination or closing has been effected within three months after an acquisition in connection with such acquisition, provided that the Borrower’s calculation of such adjustments is set forth in a certificate signed by a Financial Officer of the Borrower.

“ Consolidated Fixed Charges ” means, for any period, the sum of (a) Consolidated Cash Interest Expense for such period, (b) Capital Expenditures for such period and (c) all cash dividends paid or payable during such period in respect of Cash-Pay Preferred Equity, provided that such dividends shall be multiplied by a fraction the numerator of which is one and the denominator of which is one minus the effective combined tax rate of Intermediate Holdings (expressed as a decimal) for such period (as estimated in good faith by a Financial Officer of Intermediate Holdings). For purposes of calculating compliance with Section 6.11, as of any date, if Intermediate Holdings, the Borrower or any Subsidiary has made any Material Acquisition permitted by Section 6.04 or any Material Sale outside of the ordinary course of business permitted by Section 6.05 during the period of four consecutive fiscal quarters ending on the date on which the most recent fiscal quarter ended, Consolidated Fixed Charges for the relevant period for testing compliance shall be calculated after giving pro forma effect thereto, as if such acquisition or sale, transfer, lease or other disposition of assets outside of the ordinary course of business (and any related incurrence, repayment or assumption of Indebtedness with any new Indebtedness being deemed to be amortized over the applicable testing period in accordance with its terms) had occurred on the first day of the relevant period for testing compliance.

“ Consolidated Net Income ” means, for any period, the net income or loss of Intermediate Holdings, the Borrower and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, provided that, except as otherwise

 

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provided in the definition of Consolidated EBITDA with respect to the calculation of the Net Leverage Ratio or the Fixed Charge Coverage Ratio, there shall be excluded from such net income or loss (a) the income of any Person (that is not a Subsidiary) in which any other Person (other than Intermediate Holdings, the Borrower or any Subsidiary or any director holding qualifying shares in compliance with applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to Intermediate Holdings, the Borrower or any Subsidiary by such Person during such period, and (b) the income or loss of any Person accrued prior to the date on which it becomes a Subsidiary or is merged into or consolidated with Intermediate Holdings, the Borrower or any Subsidiary or the date on which such Person’s assets are acquired by Intermediate Holdings, the Borrower or any Subsidiary.

“ Consolidated Total Assets ” means, as of any date, the total assets of Intermediate Holdings, the Borrower and the Subsidiaries on such date determined on a consolidated basis in accordance with GAAP.

“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Covenant Relief Period ” means the period beginning on April 4, 2009, and ending on January 1, 2010 (inclusive).

“ Default ” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

“ Deferred Compensation Plans ” means (a) the deferred compensation plan dated as of January 1, 2002, of the Borrower (as amended, waived, supplemented or otherwise modified from time to time), (b) any other plan established in lieu of, or to renew or replace, in whole or in part, any plan referred to in clause (a) above or this clause (b) and (c) any Guarantee by Intermediate Holdings or any Subsidiary of any obligation under any Deferred Compensation Plan referred to in clause (a) or (b) above.

“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.

“ Dollar Equivalent ” means, on any date of determination, (a) for the purposes of determining compliance with Article VI or the existence of an Event of Default under Article VII, with respect to any amount denominated in a currency other than dollars, the equivalent in dollars of such amount, determined in good faith by the Borrower in a manner consistent with the way such amount is or would be reflected on the audited consolidated financial statements delivered pursuant to Section 5.01(a) for the fiscal year in which such determination is made, and (b) for the purposes of Article II, with respect to any amount denominated in an Alternative Currency, the equivalent in dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05(a) using the applicable Exchange Rate with respect to such Alternative Currency.

 

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“ dollars ” or “ $ ” refers to lawful money of the United States of America.

“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating to the environment, preservation or reclamation of natural resources or the presence, management, Release or threatened Release of any Hazardous Material.

“ Environmental Liability ” means any liabilities, obligations, damages, claims, actions, suits, judgments or orders, contingent or otherwise (including any costs of environmental remediation, administrative oversight costs, fines, penalties or indemnities), of Intermediate Holdings, the Borrower or any Subsidiary resulting from or relating to (a) the non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan, (e) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from

 

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any Plan or Multiemployer Plan or (h) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in endangered or critical status, within the meaning of Section 305 of ERISA.

“ Eurodollar ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“ Event of Default ” has the meaning assigned to such term in Section 7.01.

“ Exchange Rate ” means, on any day, with respect to any Alternative Currency, the rate at which such Alternative Currency may be exchanged into dollars, as set forth at approximately 11:00 a.m., New York City time, on such day on the applicable Reuters World Spot Page. In the event that any such rate does not appear on any Reuters World Spot Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent in consultation with the Borrower for such purpose or, at the discretion of the Administrative Agent in consultation with the Borrower, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such Alternative Currency are then being conducted, at or about 10:00 a.m., local time, on such day for the purchase of the applicable Alternative Currency for delivery two Business Days later, provided that, if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any other reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

“ Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under this Agreement or any other Loan Document, (a) income or franchise taxes (i) imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, or (ii) as a result of a present or former connection between such recipient and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from such Lender’s, such Issuing Bank’s or any other recipient’s having executed, delivered or performed its obligations or received a payment under, or enforced, any Loan Document), (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any withholding tax that (i) is in effect and would apply to amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates

 

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a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to any withholding tax pursuant to Section 2.16(a), or (ii) is attributable to such Foreign Lender’s failure to comply with Section 2.16(f).

“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“ Financial Officer ” means the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of Intermediate Holdings or the Borrower, as the case may be.

“ First Restated Credit Agreement ” has the meaning assigned to such term in the preamble to this Agreement.

“ First Restatement Effective Date ” means the “Effective Date” as defined in the First Restated Credit Agreement.

“ Fixed Charge Coverage Ratio ” has the meaning assigned to such term in Section 6.11.

“ Foreign Lender ” means any Lender that is organized under the laws of a jurisdiction other than the jurisdiction in which the Borrower is located.

“ Foreign Security Agreement ” means, with respect to any Loan Party organized under the laws of Singapore, the Netherlands or Northern Ireland, or with respect to the Equity Interests of any Foreign Subsidiary organized under the laws of Singapore, the Netherlands or Northern Ireland that are owned by any Loan Party, or with respect to any Loan Party that owns any material Collateral located in Singapore, the Netherlands or Northern Ireland, a security or pledge agreement, or any similar document or instrument, that (a) creates a perfected Lien on all or substantially all tangible and intangible assets (including Equity Interests in other Subsidiaries of such Foreign Subsidiary) of the applicable Loan Party organized in such jurisdiction, or on the Equity Interests in such Foreign Subsidiary owned by the applicable Loan Party, or in the material assets of the applicable Loan Party located in such jurisdiction, as the case may be, in each case prior to any other Lien on any of such assets or Equity Interests (other than Liens permitted pursuant to Section 6.02), (b) provides rights and benefits to the Administrative Agent and the other Secured Parties with respect to such assets substantially the same as the rights and benefits provided by the U.S. Security Agreement and the U.S. Pledge Agreement (except as prohibited by applicable law) and (c) is

 

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otherwise in form and substance reasonably satisfactory to the Administrative Agent, in each case entered into by the applicable Loan Party and the Administrative Agent for the benefit of the Secured Parties.

“ Foreign Subsidiary ” means any Subsidiary that is organized under the laws of a jurisdiction other than (a) the United States of America (including any State thereof and the District of Columbia) or (b) the Cayman Islands.

“ Foreign Subsidiary Guarantee Agreement ” means an agreement between any Foreign Subsidiary and the Administrative Agent that (a) provides a Guarantee of the Obligations by such Foreign Subsidiary in favor of, and other rights and benefits to, the Administrative Agent and the other Secured Parties substantially the same as the Guarantee of the Obligations and the other rights and benefits provided by the U.S. Guarantee Agreement (except as prohibited by applicable law) and (b) is otherwise in form and substance reasonably satisfactory to the Administrative Agent.

“ Funded Indebtedness ” means, as of any date, the sum of (a) the aggregate principal amount of Indebtedness of Intermediate Holdings, the Borrower and the Subsidiaries outstanding as of such date, in the amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP, (b) without duplication, the aggregate amount of any Guarantee by Intermediate Holdings, the Borrower or any Subsidiary of any such Indebtedness of any other Person, (c) without duplication, the principal amount of any Permitted Receivables Financing as of such date and (d) without duplication, the aggregate liquidation value (or equivalent thereof) of Cash-Pay Preferred Equity (including any deferred dividend payments with respect thereto) as of such date.

“ GAAP ” means generally accepted accounting principles in the United States of America.

“ Governmental Authority ” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other

 

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obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

“ Guarantee Agreements ” means (a) with respect to each U.S. Loan Party, each Loan Party organized under the laws of the Cayman Islands and each other Loan Party reasonably designated by the Administrative Agent, the U.S. Guarantee Agreement and (b) with respect to each other Loan Party, a Foreign Subsidiary Guarantee Agreement.

“ Hazardous Materials ” means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all substances or wastes regulated pursuant to any applicable Environmental Law, including any material listed as a hazardous substance under Section 101(14) of CERCLA.

“ Immaterial Subsidiary ” means, on any day, a Subsidiary that holds less than 2.50% of the Consolidated Total Assets as of the last day of the fiscal quarter of Intermediate Holdings most recently ended prior to such day.

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business and any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) the amount of all Permitted Receivables Financings of such Person and (l) all Cash-Pay Preferred Equity. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding anything to the contrary in this paragraph, the term “Indebtedness” shall not include (i) obligations under Swap Agreements, (ii) agreements providing for indemnification, purchase price adjustments or similar obligations incurred or assumed in connection with the acquisition or disposition of assets or stock, (iii) liabilities incurred under the Deferred Compensation Plans or (iv) liabilities customarily incurred under the Platinum Leases.

 

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“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

“ Indemnity, Subrogation and Contribution Agreement ” means the Indemnity, Subrogation and Contribution Agreement, dated as of the Second Restatement Effective Date, in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit E , among Intermediate Holdings, the Borrower, each Subsidiary Loan Party that executes the U.S. Guarantee Agreement and the Administrative Agent.

“ Index Debt ” means the Borrower’s senior unsecured long-term debt.

“ Initial Effective Date ” means the “Effective Date” as defined in the Original Credit Agreement.

“ Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07.

“ Interest Payment Date ” means (a) with respect to any ABR Loan, the last day of each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

“ Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, with the consent of each Lender, nine or twelve months) thereafter, as the Borrower may elect, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“ Intermediate Holdings ” has the meaning assigned to such term in the preamble to this Agreement.

“ Investment ” has the meaning assigned to such term in Section 6.04.

 

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“ Investment Grade Period ” means any period (a) commencing on the first day on which (x) the Index Debt has Investment Grade Ratings and (y) no Default or Event of Default has occurred and is continuing and (b) ending on the date on which the Index Debt no longer has Investment Grade Ratings.

“ Investment Grade Ratings ” means that the Index Debt is rated both (a) BBB- (or, for purposes of Section 6.05, BBB) or better by S&P and (b) Baa3 (or, for purposes of Section 6.05, Baa2) or better by Moody’s.

“ Issuing Bank ” means, as the context may require, (a) JPMorgan Chase Bank, N.A., with respect to Letters of Credit issued by it, (b) The Bank of Nova Scotia, with respect to Letters of Credit issued by it, (c) Bank of America, N.A. with respect to Letters of Credit issued by it, and (d) any other Lender that becomes an Issuing Bank pursuant to Section 2.05(l), with respect to Letters of Credit issued by it, and, in each case, its successors in such capacity as provided in Section 2.05(i). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

“ LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

“ LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn and unexpired amount of all outstanding Letters of Credit denominated in dollars at such time plus (b) the aggregate amount of all LC Disbursements that were made in dollars and that have not yet been reimbursed by or on behalf of the Borrower at such time plus (c) the Alternative Currency LC Exposure at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

“ Lender Affiliate ” means, (a) with respect to any Lender, (i) an Affiliate of such Lender or (ii) an entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by such Lender or an Affiliate of such Lender and (b) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“ Lenders ” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to Section 9.04, other than any such Person that ceases to be a party hereto pursuant to Section 9.04.

“ Letter of Credit ” means any letter of credit issued pursuant to this Agreement (including each letter of credit issued under the First Restated Credit Agreement and outstanding on the Second Restatement Effective Date).

“ LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate appearing on the Reuters “LIBOR01” screen displaying British

 

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Bankers’ Association Interest Settlement Rates (or on any successor or substitute screen provided by Reuters, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such screen, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

“ Liquidity Amount ” means, as of any date, the amount equal to (a) the aggregate amount of cash, cash equivalents and short-term investments that would be reflected as cash, cash equivalents or short-term investments on a consolidated balance sheet of Intermediate Holdings, prepared in accordance with GAAP, held by Intermediate Holdings, the Borrower and the Subsidiaries (other than the SPE Subsidiaries) on such date, minus (b) the aggregate principal amount of Loans outstanding on such date.

“ Loan Document Obligations ” has the meaning assigned to such term in the definition of the term “Obligations”.

“ Loan Documents ” means this Agreement, the Guarantee Agreements, the Indemnity, Subrogation and Contribution Agreement, the Security Documents and the Promissory Notes.

“ Loans ” means the loans made by the Lenders to the Borrower pursuant Section 2.01 (and including Loans (as defined in the First Restated Credit Agreement) made by the Lenders to the Borrower that are outstanding under the First Restated Credit Agreement on the Second Restatement Effective Date).

“ Loan Parties ” means the Borrower, Intermediate Holdings and each Subsidiary Loan Party.

“ Material Acquisition ” means, at any time, any acquisition (whether by purchase, merger, consolidation or otherwise) by Intermediate Holdings, the Borrower or any Subsidiary that is permitted hereunder and for which the sum (without duplication) of all consideration paid or otherwise delivered by Intermediate Holdings, the Borrower and the Subsidiaries in connection with such acquisition (including the principal amount of

 

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any Indebtedness issued as deferred purchase price and the fair market value, determined reasonably and in good faith by the Borrower, of any other non-cash consideration, including Equity Interests in Intermediate Holdings or any Subsidiary) plus the aggregate principal amount of all Indebtedness otherwise incurred or assumed by Intermediate Holdings, the Borrower or any Subsidiary in connection with such acquisition (including Indebtedness of any acquired Person outstanding at the time of such acquisition) exceeds the amount that is equal to 5% of Consolidated Total Assets as of the end of the fiscal year of Intermediate Holdings most recently ended at or prior to such time.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, operations, properties or financial condition of Intermediate Holdings, the Borrower and the Subsidiaries, taken as a whole, (b) the ability of Intermediate Holdings and the Borrower to perform their obligations under the Loan Documents or (c) any material rights of or benefits available to the Lenders under the Loan Documents.

“ Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of Intermediate Holdings, the Borrower or any Subsidiary in an aggregate principal amount exceeding $50,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Person in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Person would be required to pay if such Swap Agreement were terminated at such time.

“ Material Sale ” means, at any time, any sale, transfer or other disposition of any property or asset of Intermediate Holdings, the Borrower or any Subsidiary that is permitted hereunder and for which all consideration paid or otherwise delivered to Intermediate Holdings, the Borrower and the Subsidiaries in connection with such sale, transfer or other disposition (including the principal amount of any Indebtedness issued as deferred purchase price and the fair market value, determined reasonably and in good faith by the Borrower, of any other non-cash consideration, including Equity Interests) plus the aggregate principal amount of all Indebtedness of Intermediate Holdings, the Borrower and the Subsidiaries assumed by the purchaser of such property or asset in connection with such sale (including Indebtedness of any Person sold, transferred or disposed of by Intermediate Holdings, the Borrower or any Subsidiary that is assumed by the purchaser of such Person in connection with such sale) exceeds the amount that is equal to 5% of Consolidated Total Assets as of the end of the fiscal year of Intermediate Holdings most recently ended at or prior to such time.

“ Maturity Date ” means September 19, 2011, or, if such day is not a Business Day, the Business Day immediately preceding such day.

“ Maxtor ” means Maxtor Corporation, a Delaware corporation.

“ Maxtor Notes ” has the meaning assigned to such term in Section 6.01(a)(iii).

 

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“ Moody’s ” means Moody’s Investors Service, Inc. and its successors.

“ Mortgage ” means a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any Mortgaged Property to secure the Obligations. Each Mortgage shall be reasonably satisfactory in form and substance to the Administrative Agent.

“ Mortgaged Property ” means, initially, each parcel of real property and the improvements thereto owned by a Loan Party and identified on Schedule 1.01, and includes each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.

“ MSSF ” means Morgan Stanley Senior Funding, Inc.

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“ Net Leverage Ratio ” means, on any date, the ratio of (a) the excess of (i) Funded Indebtedness as of such date (excluding any refinancing or replacement Indebtedness incurred pursuant to Section 6.01(a)(ii) or Section 6.01(a)(iii) that is outstanding as of such date the Net Proceeds of which are held by the Administrative Agent on such date in an escrow account in accordance with the terms of such Section) over (ii) the sum of (A) the amount of cash held by Intermediate Holdings, the Borrower or any Subsidiary and (B) the carrying value of Permitted Investments that would be reflected as cash or short-term investments on a consolidated balance sheet of Intermediate Holdings on such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of Intermediate Holdings ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter of Intermediate Holdings most recently ended prior to such date).

“ Net Proceeds ” means, with respect to any event, (a) the cash proceeds received in respect of such event, including any cash received in respect of any non-cash proceeds, but only as and when received, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses (including underwriting discounts and commissions and collection expenses) paid or payable by Intermediate Holdings, the Borrower and the Subsidiaries to third parties in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction), the amount of all payments required to be made by Intermediate Holdings, the Borrower and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event, and (iii) the amount of all taxes paid (or reasonably estimated to be payable) by Intermediate Holdings, the Borrower and the Subsidiaries plus the amount of any reserves established by Intermediate Holdings, the Borrower and the Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by the chief financial officer of Intermediate Holdings).

 

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“ Non-Consenting Lender ” has the meaning assigned to such term in Section 9.02(b).

“ Non-Investment Grade Period ” means any period of time other than an Investment Grade Period.

“ Obligations ” means (a) the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements made by any Issuing Bank with respect thereto, interest thereon and obligations to provide, under certain circumstances, cash collateral in connection therewith and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties to the Secured Parties under this Agreement and the other Loan Documents (all the foregoing obligations being collectively called the “ Loan Document Obligations ”), (b) unless otherwise agreed to in writing by the applicable Lender or Affiliate of a Lender party thereto, the due and punctual payment of all obligations of the Borrower or any other Loan Party under each Swap Agreement (it being understood that, for purposes of this clause (b), the term “Swap Agreements” shall not include Platinum Leases) that (i) is in effect on the Second Restatement Effective Date with a counterparty that is a Lender (or an Affiliate of a Lender) as of the Second Restatement Effective Date or (ii) is entered into after the Second Restatement Effective Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Swap Agreement is entered into, (c) the due and punctual payment of all obligations in respect of overdrafts and related liabilities owed to any Lender or any of its Affiliates and arising from treasury, depositary and cash management services or in connection with any automated clearing house transfers of funds (the obligations referred to in this clause (c) being collectively referred to as the “ Cash Management Obligations ”) and (d) unless otherwise agreed to in writing by the applicable Lender or Affiliate of a Lender party thereto, the due and punctual payment of all obligations (other than any such obligations that would constitute Indebtedness) of the Borrower or any other Loan Party under each Platinum Lease that (i) is in effect on the Second Restatement Effective Date with a lessor that is a Lender (or an Affiliate of a Lender) as of the Second Restatement Effective Date or (ii) is entered into after the Second Restatement Effective Date with any lessor that is a Lender (or an Affiliate of a Lender) at the time such Platinum Lease is entered into (the obligations referred to in this clause (d) being collectively referred to as the “ Platinum Lease Obligations ”), provided that (x) the aggregate amount of all Platinum Lease Obligations that shall be secured pursuant to the Security Documents may not exceed $130,000,000 at any time outstanding and (y) the lessor in respect of any Platinum Lease Obligations that are so secured shall have entered into an intercreditor agreement, in form and substance reasonably satisfactory to the Administrative Agent,

 

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pursuant to which such lessor shall, among other things, agree that such lessor shall not be entitled to such recourse from any Collateral other than platinum and precious metals that are leased pursuant to the applicable Platinum Lease until all such lessor’s rights to recovery from such platinum and precious metals (including in connection with any foreclosure on, taking possession of, sale of, collection from or other realization upon such platinum and precious metals) shall have been exhausted.

“ Original Credit Agreement ” has the meaning assigned to such term in the preamble to this Agreement.

“ Other Taxes ” means any and all current or future recording, stamp, documentary, excise, transfer, sales, property or similar taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

“ Overdraft Facility ” means any same-day overdraft facility extended by a bank or other lending institution to Intermediate Holdings, the Borrower or any Subsidiary.

“ Participant ” has the meaning assigned to such term in Section 9.04(e).

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“ Perfection Certificate ” has the meaning assigned to such term in the U.S. Security Agreement.

“ Permitted Encumbrances ” means:

(a) Liens imposed by law for taxes or other governmental charges that are not yet due or are being contested in compliance with Section 5.05;

(b) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 5.05;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) Liens to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Section 7.01;

 

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(f) easements, zoning restrictions, licenses, reservations, covenants, utility easements, building restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business and minor defects or irregularities in title that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Intermediate Holdings, the Borrower or any Subsidiary;

(g) any interest or title of a lessor under any lease permitted by this Agreement;

(h) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(i) leases or subleases granted to other Persons and not interfering in any material respect with the business of Intermediate Holdings, the Borrower and the Subsidiaries, taken as a whole;

(j) licenses of intellectual property granted in the ordinary course of business; and

(k) Liens substantially similar to the Liens described in clauses (a) through (j) of this definition and arising by operation of law in any jurisdiction outside of the United States of America,

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

“ Permitted Investments ” means:

(a) direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof;

(b) investments in commercial paper maturing not more than one year after the date of acquisition issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America and having, at such date of acquisition, a rating of “P-1” (or better) from Moody’s or “A-1” (or better) from S&P;

(c) investments in (i) certificates of deposit, bankers’ acceptances, time deposits and money market deposit accounts maturing not more than one year after the date of acquisition thereof issued or guaranteed by or placed with any commercial bank or trust company organized under the laws of the United States of America or any State thereof or any foreign country recognized by the United States of America or (ii) obligations of United States Federal agencies sponsored

 

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by the Federal government (including, without limitation, the Federal Home Loan Bank, Federal Farm Credit Bank, Federal Home Loan Mortgage Corporation and Federal National Mortgage Association) that are not direct obligations of the United States of America or any State thereof and are not obligations guaranteed by the United States of America or any State thereof, in each case which bank, trust company or Federally sponsored agency has a combined capital and surplus and undivided profits in excess of $250,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act of 1933, as amended);

(d) fully collateralized repurchase obligations with a term of not more than 45 days for securities described in clause (a) above or clause (e), (f) or (g) below and entered into with a financial institution satisfying the criteria described in clause (c) above;

(e) investments in securities issued or fully guaranteed by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having maturities of not more than three years from the date of acquisition thereof and, having a rating of at least “AA” from S&P or “Aa” from Moody’s;

(f) investments in securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and having a rating of at least “A” from S&P or from Moody’s;

(g) investments in securities issued by any foreign government or any political subdivision of any foreign government or any public instrumentality thereof having maturities of not more than six months from the date of acquisition thereof and, at the time of acquisition, having one of the two highest credit ratings obtainable from S&P or from Moody’s;

(h) investments in corporate bonds or notes having maturities of not more than five years from the date of acquisition thereof and having a rating of at least “A” from S&P or Moody’s;

(i) auction rate preferred stock having maturities of not more than 90 days from the date of acquisition thereof, provided that the long-term senior unsecured debt of the issuer of such preferred stock shall have a rating of at least “A” from S&P or from Moody’s;

(j) investments in funds that invest substantially all their assets in one or more types of securities described in clauses (a) through (i) above; and

 

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(k) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940 and (ii) have portfolio assets of at least $1,000,000,000.

“ Permitted Obligation ” means an obligation of Intermediate Holdings, the Borrower or any Subsidiary (for purposes of this definition, a “ Primary Obligor ”) not constituting Indebtedness, provided (a) such obligation is entered into in the ordinary course of such Primary Obligor’s business, (b) any Guarantee of such obligation by Intermediate Holdings or, in the case of any Subsidiary or Intermediate Holdings, the Borrower, is given in the ordinary course of business of Intermediate Holdings or the Borrower, as the case may be, and (c) any Guarantee of such obligation is reasonably consistent with the practices of Intermediate Holdings and the Borrower and reasonably necessary to permit the Primary Obligor to incur such obligation.

“ Permitted Receivables Financing ” means any transaction or series of transactions that may be entered into by the Borrower or any Subsidiary pursuant to which it may sell, convey, contribute to capital or otherwise transfer (which sale, conveyance, contribution to capital or transfer may include or be supported by the grant of a security interest in) Receivables or interests therein and all collateral securing such Receivables, all contracts and contract rights, purchase orders, security interests, financing statements or other documentation in respect of such Receivables, any guarantees, indemnities, warranties or other obligations in respect of such Receivables, any other assets that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables similar to such Receivables and any collections or proceeds of any of the foregoing (collectively, the “ Related Assets ”) (a) to a trust, partnership, corporation or other Person (other than the Borrower or any Subsidiary other than any SPE Subsidiary), which transfer is funded in whole or in part, directly or indirectly, by the incurrence or issuance by the transferee or any successor transferee of Indebtedness, fractional undivided interests or other securities that are to receive payments from, or that represent interests in, the cash flow derived from such Receivables and Related Assets or interests in such Receivables and Related Assets, or (b) directly to one or more investors or other purchasers (other than the Borrower or any Subsidiary), it being understood that a Permitted Receivables Financing may involve (i) one or more sequential transfers or pledges of the same Receivables and Related Assets, or interests therein (such as a sale, conveyance or other transfer to any SPE Subsidiary followed by a pledge of the transferred Receivables and Related Assets to secure Indebtedness incurred by the SPE Subsidiary), and all such transfers, pledges and Indebtedness incurrences shall be part of and constitute a single Permitted Receivables Financing, and (ii) periodic transfers or pledges of Receivables and/or revolving transactions in which new Receivables and Related Assets, or interests therein, are transferred or pledged upon collection of previously transferred or pledged Receivables and Related Assets, or interests therein, provided that any such transactions shall provide for recourse to such Subsidiary (other than any SPE Subsidiary) or the Borrower (as applicable) only in respect of the cash flows in respect of such Receivables and Related Assets and to the extent of breaches of representations and warranties relating to the Receivables, dilution of the Receivables, customary indemnities and other customary securitization undertakings in the jurisdiction relevant to such transactions; and provided further that the aggregate principal amount of Permitted Receivables Financings shall not exceed $500,000,000 at any time outstanding.

 

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The “amount” or “principal amount” of any Permitted Receivables Financing shall be deemed at any time to be (1) the aggregate principal or stated amount of the Indebtedness, fractional undivided interests (which stated amount may be described as a “net investment” or similar term reflecting the amount invested in such undivided interest) or other securities incurred or issued pursuant to such Permitted Receivables Financing, in each case outstanding at such time, or (2) in the case of any Permitted Receivables Financing in respect of which no such Indebtedness, fractional undivided interests or securities are incurred or issued, the cash purchase price paid by the buyer (other than any SPE Subsidiary) in connection with its purchase of Receivables less the amount of collections received by the Borrower or any Subsidiary in respect of such Receivables and paid to such buyer, excluding any amounts applied to purchase fees or discount or in the nature of interest.

“ Permitted Secured Debt Amount ” means, at any time, an amount equal to the aggregate principal amount of secured Indebtedness for borrowed money of the Borrower, Intermediate Holdings and the Subsidiaries that would be permitted to be outstanding pursuant to the terms of the Senior Notes Documents at such time (without being required to secure the Senior Notes on an equal and ratable basis with the Loan Document Obligations pursuant to the terms of the Senior Notes Documents), minus the aggregate amount of the Commitments at such time.

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“ Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Platinum Leases ” means, collectively, leasing arrangements with respect to platinum and other precious metals that are entered into from time to time by the Borrower or any Subsidiary in the ordinary course of their business, including that certain Master Lease and Hedging Contracts Agreement for Precious Metals dated as of April 25, 2008, between The Bank of Nova Scotia and Seagate Technology International (“ STI ”), and the associated Guarantee dated April 25, 2008, by the Borrower of STI’s obligations thereunder. For the avoidance of doubt, “Platinum Leases” shall include any Swap Agreement that is (x) entered into with the lessor (or any Affiliate thereof) under any leasing arrangement described in the immediately preceding sentence and (y) involves, or is settled by reference to, platinum or any other precious metal that is the subject of such leasing arrangement.

 

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“ Pledge Agreements ” means, collectively, the U.S. Pledge Agreement and each Cayman Pledge Agreement.

“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A., as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“ Promissory Notes ” means any promissory notes delivered pursuant to Section 2.09(e).

“ Proposed Change ” has the meaning assigned to such term in Section 9.02(b).

“ Qualified CFC Holding Company ” means, with respect to any U.S. Subsidiary, a subsidiary (a) that is owned directly or indirectly by such U.S. Subsidiary or a non-U.S. Subsidiary of such U.S. Subsidiary, (b) that is treated as a disregarded entity for U.S. Federal income tax purposes, (c) the primary asset of which consists of Equity Interests of either (i) a CFC Subsidiary or (ii) another Qualified CFC Holding Company and (d) that is in compliance with the Qualified CFC Holding Company Limitation.

“ Qualified CFC Holding Company Limitation ” means, with respect to any Person, that such Person does not engage in any business or activity other than holding or acquiring the Equity Interests of one or more CFC Subsidiaries and/or one or more other Qualified CFC Holding Companies and any activity directly related thereto.

“ Receivables ” means accounts receivable (including all rights to payment created by or arising from the sale of goods, leases of goods or the rendition of services, no matter how evidenced (including in the form of a chattel paper) and whether or not earned by performance.

“ Register ” has the meaning assigned to such term in Section 9.04(c).

“ Related Assets ” has the meaning assigned to such term in the definition of the term “Permitted Receivables Financing”.

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents, trustees and advisors of such Person and such Person’s Affiliates.

“ Release ” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.

“ Required Lenders ” means, at any time, Lenders having Revolving Exposures and unused Commitments representing in the aggregate more than 50% of the aggregate Revolving Exposures and unused Commitments at such time.

 

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“ Reset Date ” has the meaning assigned to such term in Section 1.05(a).

“ Restricted Payment ” means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests (other than any Cash-Pay Preferred Equity) in Intermediate Holdings, the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in Intermediate Holdings, the Borrower or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrower or any Subsidiary and (b) any distribution or other payment (whether in cash, securities or other property or any combination thereof) under or in respect of any Deferred Compensation Plan.

“ Revolving Exposure ” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Loans at such time and (b) such Lender’s LC Exposure at such time.

“ S&P ” means Standard & Poor’s Ratings Group, Inc. and its successors.

“ SEC ” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“ Second Restatement Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

“ Secured Parties ” means (a) each Lender (and any Affiliate of such Lender to which any Cash Management Obligation is owed), (b) each Issuing Bank, (c) the Administrative Agent, (d) each counterparty to any Swap Agreement with a Loan Party the obligations under which constitute Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document, (f) each counterparty to any Platinum Lease with a Loan Party the obligations under which constitute Obligations and (g) the successors and assigns of each of the foregoing.

“ Security Agreements ” means, collectively, the U.S. Security Agreement (including any short-form version thereof filed with the United States Patent and Trademark Office or the United States Copyright Office) and each Cayman Security Agreement.

“ Security Documents ” means the Security Agreements, the Pledge Agreements, the Foreign Security Agreements, the Mortgages and each other pledge agreement, security agreement or other instrument or document executed and delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.

“ Senior Notes ” means (a) the 8% Senior Notes due 2009 that were outstanding on the First Restatement Effective Date and (b) each of (i) the $300,000,000 Floating Rate Senior Notes due 2009, (ii) the $600,000,000 6.375% Senior Notes due 2011 and (iii) the $600,000,000 6.800% Senior Notes due 2016 that were

 

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issued substantially concurrently with the First Restatement Effective Date, and in each case the respective Indebtedness represented thereby (including the respective Parent Guaranties, the Exchange Notes (each as defined in the Senior Note Documents), the respective guarantees of the Exchange Notes and any replacement notes).

“ Senior Note Documents ” means the indentures under which the Senior Notes are issued and all other instruments, agreements and other documents evidencing or governing the Senior Notes or providing for any Guarantees in respect thereof by Intermediate Holdings.

“ SPE Subsidiary ” means any wholly-owned Subsidiary of the Borrower formed solely for the purpose of, and that engages only in, one or more Permitted Receivables Financings.

“ SPV ” has the meaning assigned to such term in Section 9.04(h).

“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“ 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 of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“ Subsidiary ” means any subsidiary of Intermediate Holdings other than the Borrower.

“ Subsidiary Loan Party ” means any wholly-owned Subsidiary, except (a) any Immaterial Subsidiary, (b) any SPE Subsidiary and (c) any Subsidiary that is not required to execute and deliver a Guarantee Agreement pursuant to the Collateral and Guarantee Requirement or Section 5.12. Notwithstanding the foregoing, no Subsidiary

 

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will be required to become a Subsidiary Loan Party if the Administrative Agent determines, taking into account all legal and practical considerations, that the Administrative Agent, on behalf of the Secured Parties, will not be able to realize the benefits intended to be created by such Subsidiary’s Guarantee of the Obligations.

“ Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions, provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or any Subsidiary shall be a Swap Agreement.

“ Taxes ” means any and all current or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“ Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

“ USA Patriot Act ” shall have the meaning assigned to such term in Section 9.15.

“ U.S. Guarantee Agreement ” means the U.S. Guarantee Agreement, dated as of the Second Restatement Effective Date, in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit B , among Intermediate Holdings, the Borrower, the U.S. Loan Parties, the Subsidiary Loan Parties that are organized under the laws of the Cayman Islands, the other applicable Subsidiary Loan Parties and the Administrative Agent for the benefit of the Secured Parties.

“ U.S. Loan Parties ” means any Loan Parties that are organized under the laws of the United States of America or any State thereof or the District of Columbia.

“ U.S. Pledge Agreement ” means the U.S. Pledge Agreement, dated as of the Second Restatement Effective Date, in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and attached as Exhibit D-1 , among the U.S. Loan Parties and each other Loan Party that owns Equity Interests in a Subsidiary that is organized under the laws of the United States of America (including any State thereof and the District of Columbia) and that would constitute Collateral if such Loan Party executed the U.S. Pledge Agreement and the Administrative Agent for the benefit of the Secured Parties.

“ U.S. Security Agreement ” means the U.S. Security Agreement, dated as of the Second Restatement Effective Date, in a form to be agreed upon by the Borrower and the Administrative Agent prior to the Second Restatement Effective Date and

 

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attached as Exhibit C-1 , among the U.S. Loan Parties and each other Loan Party that owns any material Collateral located in the United States of America (including any State thereof and the District of Columbia) and the Administrative Agent for the benefit of the Secured Parties.

“ U.S. Subsidiary ” means any Subsidiary that is organized under the laws of the United States of America or any State thereof or the District of Columbia.

“ wholly-owned Subsidiary ” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than directors’ qualifying shares) are, as of such date, owned, controlled or held by such Person or one or more wholly-owned Subsidiaries of such Person or by such Person and one or more wholly-owned Subsidiaries of such Person.

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type ( e.g. , a “Eurodollar Loan”). Borrowings also may be classified and referred to by Type ( e.g. , a “Eurodollar Borrowing”).

SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, amendments and restatements, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time, provided that, if the

 

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Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision (including any definition) hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. For the purposes of determining compliance under Section 6.01, Section 6.02, Section 6.04, Section 6.05, Section 6.07, Section 6.08, Section 6.11, Section 6.12 and Section 6.13 with respect to any amount in a currency other than dollars, such amount shall be deemed to equal the Dollar Equivalent thereof (determined in good faith by the Borrower) at the time such amount was incurred or expended, as the case may be.

SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New York City time, on each Calculation Date, the Administrative Agent shall (i) determine the Exchange Rate as of such Calculation Date to be used for calculating the Dollar Equivalent amounts of each Alternative Currency in which an outstanding Alternative Currency Letter of Credit or unreimbursed LC Disbursement is denominated and (ii) give notice thereof to the Borrower. The Exchange Rates so determined shall become effective on the first Business Day immediately following the relevant Calculation Date (a “ Reset Date ”), shall remain effective until the next succeeding Reset Date and shall for all purposes of this Agreement (other than as set forth in Section 2.05(b) and other than converting into dollars under Sections 2.05(d), (e), (h), (j) and (k) and 2.12(b) the obligations of the Borrower and the Lenders in respect of LC Disbursements that have not been reimbursed when due) be the Exchange Rates employed in converting any amounts between the applicable currencies.

(b) Not later than 5:00 p.m., New York City time, on each Reset Date, the Administrative Agent shall (i) determine the Alternative Currency LC Exposure on such date (after giving effect to any Alternative Currency Letters of Credit issued, renewed or terminated or requested to be issued, renewed or terminated on such date) and (ii) notify the Borrower and each Issuing Bank of the results of such determination.

ARTICLE II

The Credits

SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make Loans to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in such Lender’s Revolving Exposure exceeding such Lender’s Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans. All Loans outstanding under the First Restated Credit Agreement on the Second Restatement Effective shall remain outstanding hereunder on the terms set forth herein.

 

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SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the same Type made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b) Subject to Section 2.13, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement and (ii) the Borrower shall not be required to make any greater payment under Section 2.14 or Section 2.16 to the applicable Lender than such Lender would have been entitled to receive if such Lender had not exercised such option.

(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000, provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the aggregate Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more than one Type may be outstanding at the same time, provided that there shall not at any time be more than a total of 15 Eurodollar Borrowings outstanding.

(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, one Business Day before the date of the proposed Borrowing, provided that any such notice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be given not later than 1:00 p.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

(i) the aggregate amount of the requested Borrowing;

 

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(ii) the date of such Borrowing, which shall be a Business Day;

(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

(v) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06.

If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

SECTION 2.04. [Intentionally Omitted]

SECTION 2.05. Letters of Credit. (a)  General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period and prior to the date that is five Business Days prior to the Maturity Date. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by such Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section 2.05), the amount of such Letter of Credit, the currency in which such Letter of Credit is

 

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to be denominated (which shall be dollars or, subject to Section 2.19, an Alternative Currency), the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $75,000,000 and (ii) the aggregate Revolving Exposures shall not exceed the aggregate Commitments.

(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i)(A) the date that is one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after the date of such renewal or extension) or (B) such other date mutually agreed upon by an Issuing Bank and the Borrower (but in no event shall such date be later than as provided in clause (ii) of this paragraph (c)) and (ii) the date that is five Business Days prior to the Maturity Date.

(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent in dollars, for the account of such Issuing Bank, such Lender’s Applicable Percentage of (i) each LC Disbursement made by such Issuing Bank in dollars and (ii) the Dollar Equivalent, using the Exchange Rates on the date such payment is required, of each LC Disbursement made by such Issuing Bank in an Alternative Currency and, in each case, not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section 2.05, or of any reimbursement payment required to be refunded to the Borrower for any reason (or, if such reimbursement payment was refunded in an Alternative Currency, the Dollar Equivalent thereof using the Exchange Rates on the date of such refund). Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement, in dollars or (subject to the two immediately succeeding sentences) the

 

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applicable Alternative Currency, not later than 2:00 p.m., New York City time, on the Business Day immediately following the date on which the Borrower receives notice of such LC Disbursement, provided that, in the case of any LC Disbursement made in dollars, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or Section 2.04 that such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing. If the Borrower’s reimbursement of, or obligation to reimburse, any amounts in any Alternative Currency would subject the Administrative Agent, any Issuing Bank or any Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in dollars, the Borrower shall reimburse each LC Disbursement made in such Alternative Currency in dollars, in an amount equal to the Dollar Equivalent, calculated using the applicable Exchange Rate on the date such LC Disbursement is made, of such LC Disbursement. If the Borrower fails to make such payment when due, then (i) if such payment relates to an Alternative Currency Letter of Credit, automatically and with no further action required, the Borrower’s obligation to reimburse the applicable LC Disbursement shall be permanently converted into an obligation to reimburse the Dollar Equivalent, calculated using the Exchange Rates on the date when such payment was due, of such LC Disbursement and (ii) the Administrative Agent shall promptly notify the applicable Issuing Bank and each Lender of the applicable LC Disbursement, the Dollar Equivalent thereof (if such LC Disbursement relates to an Alternative Currency Letter of Credit), the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent in dollars its Applicable Percentage of the payment then due from the Borrower (determined as provided in clause (i) above, if such payment relates to an Alternative Currency Letter of Credit), in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank in dollars the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to such Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement (other than the funding of ABR Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section 2.05 shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any application for the issuance of a Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in

 

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any respect, (iii) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their respective Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank, provided that the foregoing provisions of this paragraph (f) shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by (A) such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (B) such Issuing Bank’s failure to issue a Letter of Credit in accordance with the terms of this Agreement when requested by the Borrower pursuant to Section 2.05(b). The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of the applicable Issuing Bank, each Issuing Bank shall be deemed to have exercised care in each such determination and each issuance of (or failure to issue) a Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder, provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement in accordance with paragraph (e) of this Section 2.05.

(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding

 

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the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans, provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section 2.05, then Section 2.12(c) shall apply; provided further that, in the case of any LC Disbursement made under an Alternative Currency Letter of Credit, the amount of interest due with respect thereto shall (i) in the case of any LC Disbursement that is reimbursed on or before the Business Day immediately succeeding such LC Disbursement, (A) be payable in the applicable Alternative Currency and (B) bear interest at a rate equal to the rate reasonably determined by the applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC Disbursement plus the Applicable Margin applicable to Eurodollar Loans at such time and (ii) in the case of any LC Disbursement that is reimbursed after the Business Day immediately succeeding such LC Disbursement, (A) be payable in dollars, (B) accrue on the Dollar Equivalent, calculated using the Exchange Rates on the date such LC Disbursement was made, of such LC Disbursement and (C) bear interest at the rate per annum then applicable to ABR Loans, subject to Section 2.12(c). Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section 2.05 to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i) Replacement of the Issuing Bank. Any Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of any Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.11(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement