U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: April 20, 2006
(Date of earliest event reported)
ALBANY INTERNATIONAL CORP.
(Exact name of registrant as specified in its charter)
Delaware 0-16214 14-0462060
(State or other jurisdiction (Commission (IRS employer
of incorporation) file number) identification no.)
1373 Broadway, Albany, New York 12204
(518) 445-2200
(Address and telephone number of the registrant's principal executive offices)
Item 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
Item 1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT
Item 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION
On April 14, 2006, Albany International Corp. ("the Registrant") entered into a
$460 million Five-Year Revolving Credit Facility Agreement (the "New Agreement")
with JPMorgan Chase Bank, N.A., As Administrative Agent, J.P. Morgan Europe
Limited, as London Agent, Bank of America, N.A., Bank of Tokyo Mitsubishi UFJ
Trust Company, Wachovia Bank, N.A., Sumitomo Mitsui Banking Corporation,
Citizens Bank of Massachusetts, ABN AMRO Bank N.V., HSBC Bank USA, N.A., Nordea
Bank Finland PLC, Manufacturers and Traders Trust Company, TD Northbank, N.A.
and First Niagara Bank. The New Agreement replaced a $460 million five-year
facility agreement (the "Old Agreement") with the same Agents and all of the
lenders listed above, as well as Scotiabank Inc.
The New Agreement contains customary terms, as well as affirmative covenants,
negative covenants and events of default comparable to those in the Old
Agreement. The Borrowings are guaranteed by certain of the Registrant's U.S.
subsidiaries, as were borrowings under the Old Agreement.
The applicable interest rate for borrowings under the New Agreement, as well as
under the Old Agreement, is LIBOR plus a spread, based on the Company's leverage
ratio at the time of borrowing. Spreads under the New Agreement are 15 to 50
basis points lower than under the Old Agreement. Fees for undrawn commitments
are also lower. The applicable interest rate for borrowings on April 14 was
LIBOR plus 40 basis points (or 5.22%), compared to LIBOR plus 75 basis points
(or 5.57%) under the Old Agreement.
The Agents and certain of the Lenders or their affiliates have from time to time
performed, and may in the future perform, various investment banking, financial
advisory and other lending services for the Company and its affiliates, for
which they have received and will receive customary fees.
A copy of the Agreement is being filed as an exhibit. A copy of the Old
Agreement was previously filed as an exhibit to the Company's Current Report on
Form 8-K filed January 22, 2004.
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ALBANY INTERNATIONAL CORP.
By: /s/ Michael C. Nahl
----------------------------
Name: Michael C. Nahl
Title: Executive Vice President and
Chief Financial Officer
Date: April 20, 2006
Index to Exhibits
Exhibit Number Description of Document
- -------------- -----------------------
10k(ii) $460,000 Five-Year Revolving Credit Facility Agreement among
Albany International Corp., the Lenders Party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent and J.P.
Morgan Europe Limited, as London Agent, dated as of April 14,
2006.
EXHIBIT 10k(ii)
================================================================================
$460,000,000
FIVE-YEAR REVOLVING CREDIT FACILITY AGREEMENT
dated as of
April 14, 2006,
among
ALBANY INTERNATIONAL CORP.
The Borrowing Subsidiaries
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
J.P. MORGAN EUROPE LIMITED,
as London Agent
----------
J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
BANK OF AMERICA, N.A.,
formerly known as Fleet National Bank,
BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY,
and
WACHOVIA BANK, N.A.
as Co-Syndication Agents
SUMITOMO MITSUI BANKING CORP., NEW YORK
and
CITIZENS BANK OF MASSACHUSETTS,
as Co-Documentation Agents
================================================================================
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................23
SECTION 1.03. Terms Generally................................................23
SECTION 1.04. Accounting Terms; GAAP.........................................24
SECTION 1.05. Exchange Rates.................................................24
SECTION 1.06. Redenomination of Certain Foreign Currencies...................25
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................25
SECTION 2.02. Loans and Borrowings...........................................27
SECTION 2.03. Requests for Revolving Borrowings..............................28
SECTION 2.04. Swingline Loans................................................29
SECTION 2.05. Letters of Credit..............................................30
SECTION 2.06. Funding of Borrowings..........................................35
SECTION 2.07. Interest Elections.............................................35
SECTION 2.08. Termination of Commitments; Reductions and
Increases of Commitments.....................................37
SECTION 2.09. Repayment of Loans; Evidence of Debt...........................40
SECTION 2.10. Prepayment of Loans............................................41
SECTION 2.11. Fees...........................................................42
SECTION 2.12. Interest.......................................................44
SECTION 2.13. Alternate Rate of Interest.....................................45
SECTION 2.14. Increased Costs................................................46
SECTION 2.15. Change in Legality.............................................48
SECTION 2.16. Break Funding Payments.........................................48
SECTION 2.17. Taxes..........................................................49
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.....51
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.................52
SECTION 2.20. Borrowing Subsidiaries.........................................53
ARTICLE III
Representations and Warranties
i
SECTION 3.01. Organization; Powers...........................................54
SECTION 3.02. Authorization; Enforceability..................................54
SECTION 3.03. Governmental Approvals; No Conflicts...........................54
SECTION 3.04. Financial Statements; No Material Adverse Change...............54
SECTION 3.05. Properties; Liens..............................................55
SECTION 3.06. Litigation and Environmental Matters...........................55
SECTION 3.07. Compliance with Laws...........................................55
SECTION 3.08. Investment Company Status......................................56
SECTION 3.09. Taxes..........................................................56
SECTION 3.10. ERISA..........................................................56
SECTION 3.11. Disclosure.....................................................56
SECTION 3.12. Subsidiaries...................................................56
SECTION 3.13. Solvency.......................................................56
SECTION 3.14. Federal Reserve Regulations....................................57
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.................................................57
SECTION 4.02. Conditions to All Extensions of Credit.........................58
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.............59
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information.....................60
SECTION 5.02. Notices of Material Events.....................................61
SECTION 5.03. Existence; Conduct of Business.................................62
SECTION 5.04. Payment of Obligations.........................................62
SECTION 5.05. Maintenance of Properties......................................62
SECTION 5.06. Insurance......................................................62
SECTION 5.07. Books and Records; Inspection Rights...........................62
SECTION 5.08. Compliance with Laws...........................................62
SECTION 5.09. Use of Proceeds and Letters of Credit..........................63
SECTION 5.10. Further Assurances.............................................63
ARTICLE VI
Negative Covenants
SECTION 6.01. Subsidiary Debt................................................63
SECTION 6.02. Negative Pledge................................................63
SECTION 6.03. Consolidations, Mergers and Sales of Assets....................65
SECTION 6.04. Transactions with Affiliates...................................66
ii
SECTION 6.05. Restricted Payments............................................67
SECTION 6.06. Limitations on Sale-Leasebacks.................................67
SECTION 6.07. Investments, Loans, Advances, Guarantees and
Acquisitions.................................................67
SECTION 6.08. Leverage Ratio.................................................68
SECTION 6.09. Interest Coverage Ratio........................................68
SECTION 6.10. Lines of Business..............................................68
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
ARTICLE IX
Guarantee
ARTICLE X
Miscellaneous
SECTION 10.01. Notices........................................................76
SECTION 10.02. Waivers; Amendments............................................77
SECTION 10.03. Expenses; Indemnity; Damage Waiver.............................78
SECTION 10.04. Successors and Assigns.........................................79
SECTION 10.05. Survival.......................................................82
SECTION 10.06. Counterparts; Integration; Effectiveness.......................83
SECTION 10.07. Severability...................................................83
SECTION 10.08. Right of Setoff................................................83
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process...........................................83
SECTION 10.10. WAIVER OF JURY TRIAL...........................................84
SECTION 10.11. Headings.......................................................84
SECTION 10.12. Confidentiality................................................84
SECTION 10.13. Conversion of Currencies.......................................85
SECTION 10.14. Interest Rate Limitation.......................................86
SECTION 10.15. U.S.A. PATRIOT Act.............................................86
SECTION 10.16. No Fiduciary Relationship......................................86
iii
Schedules:
- ----------
Schedule 1.01 - Indebtedness to be Refinanced
Schedule 2.01 - Commitments
Schedule 2.05 - Existing Letters of Credit
Schedule 3.06 - Disclosed Matters
Schedule 3.12 - Subsidiaries
Schedule 6.01 - Existing Indebtedness
Schedule 6.02 - Existing Liens
Schedule 6.04 - Certain Transactions with Affiliates
Schedule 6.07 - Existing Investments
Exhibits:
- ---------
Exhibit A-1 - Form of Borrowing Subsidiary Agreement
Exhibit A-2 - Form of Borrowing Subsidiary Termination
Exhibit B - Form of Alternate Currency Supplement
Exhibit C - Form of Issuing Bank Agreement
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution Agreement
Exhibit F - Form of Assignment and Assumption
Exhibit G-1 - Form of Opinion of Cleary, Gottlieb, Steen & Hamilton
Exhibit G-2 - Form of Opinion of Charles J. Silva Jr., General Counsel of
Albany International Corp.
iv
FIVE-YEAR REVOLVING CREDIT FACILITY AGREEMENT dated as
of April 14, 2006, among ALBANY INTERNATIONAL CORP., the
BORROWING SUBSIDIARIES from time to time party hereto, the
LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as
Administrative Agent and J.P. MORGAN EUROPE LIMITED, as
London Agent.
The Company (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I) has
requested (a) the Lenders to extend credit in the form of Revolving Loans in an
aggregate principal amount at any time outstanding not in excess of $460,000,000
less the sum of the LC Exposure and the Swingline Exposure at such time, (b) the
Swingline Lender to extend credit in the form of Swingline Loans in an aggregate
principal amount at any time outstanding not in excess of $25,000,000 and (c)
the Issuing Banks to issue Letters of Credit in an aggregate face amount at any
time outstanding not in excess of $40,000,000. The proceeds of Revolving Loans
will be used for general corporate purposes of the Borrowers, including, without
limitation, to refinance Indebtedness, if any, under the Existing Credit
Agreement and to repurchase shares of the Company's common stock (to the extent
permitted by this Agreement). The Letters of Credit and the proceeds of the
Swingline Loans will be used for general corporate purposes of the Borrowers.
The Lenders are willing to extend such credit to the Borrowers on
the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms 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 Eurocurrency Loan
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
2
"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. The
status of any individual as an officer or director of any Person shall not, in
and of itself, be deemed to make such individual an Affiliate of such Person.
"Agents" means, collectively, the Administrative Agent and the
London Agent.
"Aggregate Revolving Credit Exposure" means the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Agreement" means this Five-Year Revolving Credit Facility
Agreement, as the same may hereafter be modified, supplemented or amended from
time to time.
"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 and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Alternate Currency" means, at any time, (a) Euro, (b) Sterling and
(c) any other freely available currency (i) that is freely transferable and
freely convertible into US Dollars and in which dealings in deposits are carried
on in the London interbank market, (ii) that has been approved by the
Administrative Agent in a notice delivered to the Company and (iii) in respect
of which one or more Alternate Currency Supplements shall have been executed and
delivered by one or more Borrowers, one or more Fronting Lenders and the
Administrative Agent and shall be in effect.
"Alternate Currency Commitment" means, with respect to each Fronting
Lender and Alternate Currency Supplement, the commitment of such Fronting Lender
to make Revolving Alternate Currency Loans under Section 2.01(b) and such
Alternate Currency Supplement, as such commitment may be (a) reduced from time
to time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Fronting Lender pursuant to Section 10.04.
"Alternate Currency Exposure" means, with respect to any Revolving
Lender at any time, the sum at such time, without duplication, of (a) such
Revolving Lender's Applicable Percentage of the aggregate US Dollar Equivalents
of the principal amounts of the outstanding Revolving Alternate Currency Loans
(excluding any Revolving Alternate Currency Loans in respect of which such
Revolving Lender has made, or is required to have made, payments to the
applicable Fronting Lenders pursuant to Section 2.01(c)), and (b) the aggregate
principal amount at such time of the Revolving Alternate Currency Loans that
have been converted to US Dollar obligations and in respect of which such
Revolving Lender has made, or is required to have made, payments to the
applicable Fronting Lenders as provided in Section 2.01(c).
3
"Alternate Currency Fronting Fee" shall have the meaning specified
in Section 2.11(b)(ii).
"Alternate Currency Participation Fee" shall have the meaning
specified in Section 2.11(b)(i).
"Alternate Currency Supplement" means an agreement in the form of
Exhibit B hereto executed and delivered by one or more Borrowers, one or more
Fronting Lenders, the Administrative Agent and the London Agent as provided in
Section 2.01(d).
"Applicable Agent" means (a) with respect to a Loan or Borrowing
denominated in US Dollars or a Letter of Credit, the Administrative Agent, and
(b) with respect to a Loan or Borrowing denominated in any Alternate Currency,
the London Agent.
"Applicable Margin" means, for any day with respect to (a) any ABR
Loan or Eurocurrency Loan or (b) the Commitment Fees, as the case may be, the
applicable rate per annum set forth under the appropriate caption in the table
below, based upon the Leverage Ratio:
===========================================================================================================
ABR Spread Eurocurrency Spread Commitment Fee
===========================================================================================================
Utilization Utilization Utilization Utilization
less than or greater than less than or greater than
Leverage Ratio equal to 50% 50% equal to 50% 50%
- -----------------------------------------------------------------------------------------------------------
Category 1
----------
less than 1.50 0.000% 0.000% 0.400% 0.500% 0.090%
- -----------------------------------------------------------------------------------------------------------
Category 2
----------
greater than or
equal to 1.50
and less than 1.75 0.000% 0.000% 0.500% 0.600% 0.125%
- -----------------------------------------------------------------------------------------------------------
Category 3
----------
greater than or
equal to 1.75
and less than 2.00 0.000% 0.000% 0.625% 0.725% 0.150%
- -----------------------------------------------------------------------------------------------------------
Category 4
----------
greater than or
equal to 2.00
and less than 2.25 0.000% 0.000% 0.750% 0.850% 0.175%
- -----------------------------------------------------------------------------------------------------------
Category 5
----------
greater than or
equal to 2.25
and less than 2.50 0.000% 0.100% 1.000% 1.100% 0.200%
- -----------------------------------------------------------------------------------------------------------
Category 6
----------
greater than or
equal to 2.50
and less than 3.00 0.250% 0.350% 1.250% 1.350% 0.250%
- -----------------------------------------------------------------------------------------------------------
Category 7
----------
greater than or
equal to 3.00 0.625% 0.725% 1.625% 1.725% 0.300%
===========================================================================================================
Except as set forth below, the Leverage Ratio used to determine the Applicable
Margin during the period from and including any Financial Statement Delivery
Date to but excluding the next Financial Statement Delivery Date shall be that
in effect at the date of the balance sheet required to be delivered by such
first Financial Statement Delivery Date under Section 5.01(a) or (b); provided
that if any Financial Statement Delivery Date shall have occurred and the
financial statements required to have been delivered under Section 5.01(a) or
(b) by such date have not been delivered, the Applicable Margin shall, until
such financial statements shall have been delivered, be determined by reference
to Category 7.
4
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the Total Revolving Commitment represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, after giving effect to any assignments.
"Approved Fund" shall have the meaning specified in Section
10.04(b).
"Arranger" means J.P. Morgan Securities Inc., in its capacity as
arranger of the revolving credit facility provided for herein.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit F or such other form as shall be approved
by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Revolving Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and currency
made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect, or (b) a Swingline
Loan.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated
in US Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Alternate Currency, the smallest amount of such Alternate Currency that (i) is
an integral multiple of 1,000,000 units (or in the case of Sterling, 500,000
units) of such Alternate Currency and (ii) has a US Dollar Equivalent in excess
of $5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, $1,000,000 and (b) in the case of a Borrowing
denominated in any Alternate Currency, 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such Alternate Currency.
"Borrowing Request" means a request by a Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each Subsidiary that has
been designated as a Borrowing Subsidiary by the Company pursuant to Section
2.20 and that has not ceased to be a Borrowing Subsidiary as provided in such
Section.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit A-1.
5
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit A-2.
"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 (a) when used in connection with a Eurocurrency
Loan denominated in US Dollars, the term "Business Day" shall also exclude any
day on which banks are not open for dealings in deposits in US Dollars in the
London interbank market, (b) when used in connection with a Loan denominated in
any Alternate Currency (other than Euro), the term "Business Day" shall also
exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the principal financial center of the country of such
Alternate Currency and (c) when used in connection with a Loan denominated in
Euro, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro.
"Calculation Date" means the last Business Day of each calendar
month.
"Capital Expenditures" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Consolidated Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Company for such period prepared in accordance
with GAAP.
"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.
"Change in Control" means (a) the 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 Securities and Exchange
Commission thereunder as in effect on the date hereof) other than Permitted
Shareholders, of shares representing 35% or more of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Company at a time when Permitted Shareholders together (i) do not have the
unrestricted power directly or indirectly to vote or direct the vote of shares
representing a percentage of such aggregate ordinary voting power that is
greater than the percentage so owned by any such Person or group or (ii) do not
Control the Company; (b) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii)
appointed by directors so nominated; or (c) the occurrence of any "change in
control" or similar event, however denominated, resulting in an obligation on
the part of the Company or any Subsidiary to repay, redeem or repurchase, or to
offer to repay, redeem or repurchase, Material Indebtedness.
6
"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 if such request, guideline or directive is
made or issued after the date of this Agreement and reflects a change after the
date of this Agreement in the policies or practices to which such request,
guideline or directive relates.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Closing Date" means the date of the initial Credit Event hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means a Revolving Commitment or an Alternate Currency
Commitment.
"Commitment Fees" shall have the meaning specified in Section
2.11(a).
"Company" means Albany International Corp., a Delaware corporation.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income, the sum of (a) Consolidated
Interest Expense for such period, (b) income tax expense for such period, (c)
depreciation and amortization for such period and (d) all non-cash charges
(including any non-cash expenses relating to stock option exercises) during such
period (provided that any cash payment made with respect to any such non-cash
charge shall be subtracted in computing Consolidated EBITDA for the period in
which such cash payment is made), and minus, without duplication, all non-cash
gains and income for such period, all determined on a consolidated basis for the
Company and its Subsidiaries in accordance with GAAP; provided that charges in
connection with cost-cutting measures, which charges are (x) certified to the
Administrative Agent by a Financial Officer of the Company and (y) approved by
the Board of Directors of the Company, to the extent such charges would
otherwise be deducted in determining Consolidated EBITDA under this definition,
shall not reduce Consolidated EBITDA.
"Consolidated Interest Expense" means, for any period, the gross
interest expense, whether expensed or capitalized (including the interest
component in respect of Capital Lease Obligations), accrued or paid by the
Company and its Subsidiaries during such period, determined on a consolidated
basis in accordance with GAAP. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net
7
payments received by the Company or its Subsidiaries under interest rate
protection agreements, the effect of which is required to be reflected in the
Company's income statement under "Interest Expense".
"Consolidated Net Income" means, for any period, net income or loss
of the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such financial statements were prepared
on such date.
"Consolidated Tangible Net Worth" means at any date the consolidated
common shareholders' equity of the Company and its Consolidated Subsidiaries
less their consolidated Intangible Assets, all determined as of such date. For
purposes of this definition, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated common shareholders' equity) of (i)
all write-ups (other than write-ups resulting from foreign currency transactions
and write-ups of assets of a going concern business made within twelve months
after the acquisition of such business) subsequent to December 31, 2005 in the
book value of any asset owned by the Company or a Consolidated Subsidiary, (ii)
all investments in unconsolidated Subsidiaries and all equity investments in
Persons which are not Subsidiaries, in each case to the extent that the carrying
value of such investment on any Company's books exceeds its historical cost and
(iii) all unamortized debt discount and expense, unamortized deferred charges
(but only to the extent that the aggregate amount thereof exceeds $15,000,000),
goodwill, patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible assets.
"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.
"Credit Event" means any borrowing or the issuance of any Letter of
Credit.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Domestic Subsidiary" means a Subsidiary that is incorporated or
organized in the United States of America or any state or other political
subdivision, territory or possession thereof.
8
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"EMU Legislation" means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, permits, licenses, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the presence, management, release or threatened release of
any Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the presence, release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means any 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, and any
warrants, options or other rights to acquire any such equity ownership
interests.
"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 Company, 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) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
9
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Company or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "(euro)" means the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", 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" shall have the meaning specified in Article VII.
"Exchange Rate" means, on any day, with respect to any Alternate
Currency, the rate at which such Alternate Currency may be exchanged into US
Dollars (or, for purposes of Section 2.01(c) or any other provision of this
Agreement requiring or permitting the conversion of Revolving Alternate Currency
Loans to Revolving Dollar Loans, the rate at which US Dollars may be exchanged
into such Alternate Currency), as set forth at approximately 11:00 a.m., London
time, on such day on the Reuters World Currency Page for such Alternate
Currency. In the event that such rate does not appear on any Reuters World
Currency Page, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company, or, in the absence of such
agreement, 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 Foreign Currency are
then being conducted, at or about 10:00 a.m., local time, on such date for the
purchase of US Dollars (or such Alternate Currency, as the case may be) 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, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error.
"Excluded Divestiture" means any sale of assets (including Equity
Interests in any Subsidiary) for cash by the Company or any Subsidiary at a time
when the Leverage Ratio, giving pro forma effect to such sale (but not to any
related repayment of Indebtedness of the Company or any Subsidiary, other than
any prepayment of Indebtedness related to the assets sold that is required under
the terms of an agreement existing prior to, and not entered into in
contemplation of, such sale) as if it had occurred at the beginning of the
period of four consecutive fiscal quarters ended on or most recently prior to
such time, shall be less than 2.75 to 1.00.
10
"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 a Borrower hereunder, (a) doing business,
income or franchise taxes imposed on (or measured by) such recipient's net
income, capital or any similar alternate basis by the United States of America
(or any state or municipality thereof), or by any Governmental Authority as a
result of a present or former connection between the 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 the recipient having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document), and (b) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Company under Section
2.19(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender (i) to the extent such tax is in effect and would apply as of the date
such Foreign Lender becomes a party to this Agreement or relates to payments
received by a new lending office designated by such Foreign Lender and is in
effect and would apply at the time such lending office is designated (other than
(A) any withholding tax imposed on a payment from a Payment Location outside the
United States or the United Kingdom, and (B) any withholding tax imposed on any
payment by a Borrower 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 such Borrower with respect to
any withholding tax pursuant to Section 2.17(a)), or (ii) that is attributable
to such Foreign Lender's failure to comply with Section 2.17(e).
"Existing Credit Agreement" means the Credit Agreement dated as of
January 8, 2004, among the Company, certain subsidiaries of the Company party
thereto, certain lenders party thereto, JPMorgan Chase Bank, N.A. (as successor
to JPMorgan Chase Bank), as Administrative Agent and JPMorgan Europe Limited, as
London agent.
"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, as to any Person, the chief financial
officer, principal accounting officer, treasurer or controller of such Person.
"Financial Statement Delivery Date" means each date by which the
Company is required to deliver financial statements under Section 5.01(a) or
(b).
"Foreign Lender" means, with respect to any Borrower, any Lender
that is organized under the laws of a jurisdiction other than that in which such
Borrower is
11
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
Subsidiary.
"Fronting Lender" means, as to any Alternate Currency Supplement,
each Revolving Lender that has executed and delivered such Alternate Currency
Supplement as a Fronting Lender. Any Fronting Lender may, in its discretion,
arrange for one or more Revolving Alternate Currency Loans to be made by
Affiliates of such Fronting Lender, in which case the term "Fronting Lender"
shall include any such Affiliate with respect to Revolving Alternate Currency
Loans made by it.
"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 means any obligation, contingent or
otherwise, of such Person 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, or (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 obligation; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Beneficiaries" has the meaning specified in Article IX.
"Guarantee Requirement" means, at any time, that (a) the Subsidiary
Guarantee Agreement (or a supplement thereto) shall have been executed by (i)
each Domestic Subsidiary (other than (A) any Domestic Subsidiary that is a
subsidiary of a Foreign Subsidiary and (B) any Domestic Subsidiary that (x) does
not conduct any business operations, (y) has assets with a total book value not
in excess of $1,000 and (z) does not have any Indebtedness outstanding) existing
at such time and (ii) each Foreign Subsidiary that is a direct or indirect
parent corporation of a Borrower (it being understood that each such Foreign
Subsidiary will guarantee only the Obligations of such Borrower), shall have
been delivered to the Administrative Agent and shall be in full
12
force and effect and (b) the Indemnity, Subrogation and Contribution Agreement
(or a supplement thereto) shall have been executed by the Company and each
Domestic Subsidiary party to the Subsidiary Guarantee Agreement, shall have been
delivered to the Administrative Agent and shall be in full force and effect.
"Guarantor" means the Company or any Subsidiary Guarantor.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances, materials or wastes of any nature regulated pursuant
to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Immaterial Subsidiary" means any Subsidiary (other than any
Borrower, any Guarantor or any Subsidiary that directly or indirectly owns
capital stock of any Borrower or Guarantor) with respect to which both
(a) the sum of (i) the consolidated book value of the assets of such
Subsidiary and (ii) the aggregate consolidated book value of the assets of
each other Subsidiary that has a lower consolidated book value than the
assets of the Subsidiary specified in clause (i) is less than 3% of the
aggregate consolidated book value of the total assets of the Company and
all the Subsidiaries, in each case determined as of the last day of the
most recently ended fiscal year for which financial statements are
available, and
(b) the sum of (i) such Subsidiary's consolidated net income and
(ii) the aggregate consolidated net income of each other Subsidiary that
has a lower consolidated net income than that of the Subsidiary specified
in clause (i) is less than 3% of Consolidated Net Income, in each case for
the most recently ended fiscal year for which financial statements are
available.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable and obligations under Hedging Agreements, in each case incurred in the
ordinary course of business), (e) 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, (f)
all Guarantees by such Person of
13
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations of such Person as an account party in respect of letters of
credit and letters of guaranty and (i) all obligations of such Person in respect
of bankers' acceptances. 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.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Indemnitee" shall have the meaning specified in Section 10.03(b).
"Indemnity, Subrogation and Contribution Agreement" means an
Indemnity, Subrogation and Contribution Agreement substantially in the form of
Exhibit E hereto.
"Interest Election Request" means a request by a Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day 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, and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means, with respect to any Eurocurrency 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 thereafter, as the applicable Borrower may elect; provided that (i)
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
(ii) 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 thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means JPMCB and up to five other Revolving Lenders
that may become Issuing Banks hereunder from time to time by entering into
Issuing Bank Agreements with the Company, each in its capacity as an issuer of
Letters of Credit
14
hereunder, and the successors of any such person in such capacity as provided in
Section 2.05(i). Any 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 it.
"Issuing Bank Agreement" means an Issuing Bank Agreement between an
Issuing Bank, the Administrative Agent and the Company substantially in the form
of Exhibit C.
"Issuing Bank Fee" shall have the meaning specified in Section
2.11(c)(ii).
"JPMCB" means JPMorgan Chase Bank, N.A. and its successors.
"JPMEL" means J.P. Morgan Europe Limited and its successors.
"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 amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Company at such time. The LC Exposure of any Revolving Lender
at any time shall be such Lender's Applicable Percentage of the aggregate LC
Exposure at such time.
"LC Participation Fee" shall have the meaning specified in Section
2.11(c)(i).
"Lenders" means the Persons listed on Schedule 2.01, any Augmenting
Lender that shall have become a party hereto pursuant to Section 2.08(e)(i) and
any other Person that shall have become a party hereto pursuant to an Assignment
and Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption. Unless the context otherwise requires,
the term "Lenders" includes the Swingline Lender and each Fronting Lender.
"Letter of Credit" means any letter of credit issued under Section
2.05 (or deemed to have been so issued under Section 2.05(k)).
"Leverage Ratio" means, on any date, the ratio of (i) Total Debt at
such date to (ii) Consolidated EBITDA for the period of four consecutive fiscal
quarters of the Company ended on or most recently prior to such date (and solely
for purposes of this definition, if any Person shall have been acquired or
divested by the Company or its Consolidated Subsidiaries or if the Company shall
have merged with any Person during such period, Consolidated EBITDA shall be
determined on a pro forma basis as if such acquisition, divestiture or merger
had occurred at the beginning of such period).
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate per annum determined by the Applicable Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to
15
the British Bankers' Association Interest Settlement Rates for deposits in the
currency of such Borrowing (as reflected on the applicable Dow Jones Market
screen), for a period equal to such Interest Period; provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, "LIBO Rate" shall be the interest rate per annum
determined by the Applicable Agent to be the average of the rates per annum at
which deposits in the currency of such Borrowing are offered for such Interest
Period to major banks in the London interbank market by JPMCB at approximately
11:00 a.m., London time, on the date two Business Days prior to the beginning 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, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" means this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination, each Alternate Currency
Supplement, the promissory notes, if any, executed and delivered pursuant to
Section 2.09(e), the Subsidiary Guarantee Agreement, the Indemnity, Subrogation
and Contribution Agreement and the Letters of Credit.
"Loan Parties" means the Borrowers and the Guarantors; provided
that, solely for purposes of Section 6.07, the Loan Parties shall not include
any Subsidiary that is excluded from the definition of "Subsidiary Guarantor"
pursuant to the proviso contained in such definition.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Rate", when used in reference to any Revolving Alternate
Currency Loan or Revolving Alternate Currency Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a local
base rate set forth in the Alternate Currency Supplement applicable thereto.
"Local Time" means (a) with respect to any Loan or Borrowing
denominated in US Dollars or any Letter of Credit, New York City time, and (b)
with respect to any Loan or Borrowing denominated in any Alternate Currency,
London time or, in the case of a Loan or Borrowing denominated in any particular
Alternate Currency, such other time as may be specified in the applicable
Alternate Currency Supplement.
"London Agent" means J.P. Morgan Europe Limited.
"Material Adverse Change" means any event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
16
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property, condition, financial or otherwise, or prospects
of the Company and the Subsidiaries taken as a whole, or (b) the validity or
enforceability of any of the Loan Documents or the rights and remedies of the
Administrative Agent and the Lenders thereunder.
"Material Indebtedness" means Indebtedness (other than the
Obligations under this Agreement or under any other Loan Document), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Company and the Subsidiaries in an aggregate principal amount exceeding
$10,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Company or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements provided for in such Hedging Agreement) that
the Company or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Material Subsidiary" means each Subsidiary that is not an
Immaterial Subsidiary.
"Maturity Date" means April 14, 2011.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Company and
the Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale or other disposition of an asset
(including pursuant to a casualty or condemnation), the amount of all payments
required to be made by the Company 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 the
Company and the Subsidiaries, and the amount of any reserves established by the
Company and the Subsidiaries to fund contingent liabilities reasonably estimated
to be payable, that are directly attributable to such event (as determined
reasonably and in good faith by the chief financial officer of the Company).
"Obligations" means (a) the due and punctual payment of (i) the
principal of 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
17
required to be made under this Agreement in respect of any Letter of Credit,
when and as due, including payments in respect of reimbursement of LC
Disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations of the Company or any Subsidiary under this
Agreement and each other Loan Document, including obligations to pay fees,
expense reimbursement obligations and indemnification obligations, 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), (b) the due and punctual payment of all
obligations of the Company under each Hedging Agreement that (i) is in effect on
the Effective Date with a counterparty that is a Lender (or an Affiliate
thereof) as of the Effective Date or (ii) is entered into after the Effective
Date with any counterparty that is a Lender (or an Affiliate thereof) at the
time such Hedging Agreement is entered into, (c) the due and punctual
performance of all other obligations of each Borrower under or pursuant to this
Agreement and each of the other Loan Documents, and (d) the due and punctual
payment and performance of all the obligations of each other Loan Party under or
pursuant to this Agreement and each of the other Loan Documents.
"Other Taxes" means any and all present or future stamp, recording,
transfer, sales, documentary, excise, property or similar taxes, charges or
levies (and any interest, penalties or additions relating thereto) 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.
"Participant" shall have the meaning specified in Section 10.04(c).
"Payment Location" means an office, branch or other place of
business of a Borrower from which any payment due hereunder shall be made.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws
18
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) shares of money market mutual or similar funds that invest
exclusively in assets satisfying the requirements of clauses (a) through
(d) above;
provided that, in the case of any investment by a Foreign Subsidiary, "Permitted
Investments" shall also include: (i) direct obligations of the sovereign nation
(or any agency thereof) in which such Foreign Subsidiary is organized and is
conducting business or obligations fully and unconditionally guaranteed by such
sovereign nation (or any agency thereof), (ii) investments of the type and
maturity described in clauses (a) through (d) above of foreign obligors, which
investments or obligors (or the parents of such obligors) have ratings described
in such clauses or equivalent ratings from comparable foreign rating agencies
and (iii) shares of money market mutual or similar funds which invest
exclusively in assets otherwise satisfying the requirements of this definition
(including this proviso).
"Permitted Shareholders" means (a) J. Spencer Standish, (b) any of
J. Spencer Standish's descendants or legatees, (c) any executor, personal
representative or spouse of J. Spencer Standish or any of his descendants, (d)
any corporation, trust or other entity holding voting stock of the Company as to
which one or more of the Persons identified in the foregoing clauses (a) through
(c) have Control, (e) any trust as to which Persons so identified in clauses (a)
through (c) above hold at least 85% of the beneficial interest in the income and
principal of the trust disregarding the interests of the contingent remaindermen
and (f) any Employee Stock Ownership Plan for the benefit of employees of the
Company.
"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 Company 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.
"Prepayment Event" means:
(a) any sale, transfer or other disposition of any property or asset
of the Company or any Subsidiary, other than (i) Excluded Divestitures,
(ii) sale and leaseback transactions permitted by clauses (a) or (c) of
Section 6.06 and (iii) dispositions permitted by clauses (c), (d) or (e)
of Section 6.03; or
19
(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 the Company or any Subsidiary, but only to the extent
that the Net Proceeds therefrom have not been applied to repair, restore
or replace such property or asset (and are not required to be paid under
one or more contracts for such repair, restoration or replacement that
have been entered into) within 180 days after such event; provided, that
the Company or any Subsidiary may exclude from the operation of this
clause (b) any damage to or taking of property or assets the sale of which
at the time of such damage or taking would have constituted an Excluded
Divestiture.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB 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.
"Pro Rata Proceeds" means, with respect to any sale, transfer or
other disposition of any property or asset (including by way of eminent domain,
condemnation or other similar proceeding) on any day, an amount equal to the
product of (a) 75% of the Net Proceeds of such sale, transfer or disposition and
(b) a fraction, the numerator of which is the Aggregate Revolving Credit
Exposure on such day and the denominator of which is the numerator plus the
outstanding aggregate principal amount of the Company's 5.34% Senior Notes due
2017 on such day.
"Quotation Day" means, with respect to any Eurocurrency Borrowing
and any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If such
quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Receivables" means all accounts, contract rights, chattel paper,
instruments, general intangibles and other assets arising out of or in
connection with the sale or lease of goods or the rendering of services.
"Refinancings" means the repayment with proceeds of Loans made
hereunder of the Indebtedness listed on Schedule 1.01.
"Register" has the meaning set forth in Section 10.04.
"Regulation D" means Regulation D of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation T" means Regulation T of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
20
"Regulation X" means Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Revolving Commitments representing more than 50% of
the sum of the Aggregate Revolving Credit Exposure and unused Total Revolving
Commitment at such time.
"Reset Date" shall have the meaning specified in Section 1.05.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests of the Company, 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
such Equity Interests or any option, warrant or other right to acquire any such
Equity Interests; provided that none of (a) any dividend or distribution
consisting solely of common stock of the Company, (b) the payment of cash in
lieu of fractional shares in connection with any such common stock dividend or
distribution or (c) the acceptance of shares of common stock of the Company in
payment of the exercise price of any option to acquire any such shares of common
stock of the Company shall constitute a Restricted Payment.
"Revolving Alternate Currency Borrowing" means a Borrowing comprised
of Revolving Alternate Currency Loans.
"Revolving Alternate Currency Loan" means a Loan made pursuant to
Section 2.01(b) that is denominated in an Alternate Currency.
"Revolving Borrowing" means a Borrowing comprised of Revolving
Loans.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Dollar Loans pursuant hereto and to
acquire participations in Revolving Alternate Currency Loans, Letters of Credit
and Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced or increased from time to time pursuant to Section
2.08 or assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Revolving Commitment is set forth in Schedule 2.01, or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The Total Revolving Commitments
on the date hereof are $460,000,000.
21
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum at such time, without duplication, of (a) the aggregate principal
amount of all outstanding Revolving Dollar Loans of such Lender, (b) such
Lender's Alternate Currency Exposure, (c) such Lender's LC Exposure and (d) such
Lender's Swingline Exposure.
"Revolving Dollar Borrowing" mean a Borrowing comprised of Revolving
Dollar Loans.
"Revolving Dollar Loan" means a Loan made pursuant to Section
2.01(a) that is denominated in US Dollars.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Credit Exposure.
"Revolving Loans" means Revolving Dollar Loans and Revolving
Alternate Currency Loans.
"S&P" means Standard & Poor's.
"Statutory Reserve Rate" means, with respect to any currency, 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, liquid asset or similar percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by any
Governmental Authority of the United States of America or of the jurisdiction of
such currency or in which any subject Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D (and for purposes of Regulation D, Eurocurrency Loans
shall be deemed to constitute Eurocurrency Liabilities). Loans shall be deemed
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 Regulation D or any other applicable law, rule or regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Sterling" or "(pound)" means the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the
22
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,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. For purposes of Section 4.02(a), references to "subsidiaries" herein
shall be deemed, on the date of any subsequent borrowing to finance the
acquisition of any Person, to include any Person to be acquired on such date.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Guarantee Agreement" means a Guarantee Agreement
substantially in the form of Exhibit D hereto.
"Subsidiary Guarantor" means each Subsidiary that is or is required
to be a party to the Subsidiary Guarantee Agreement, and the permitted
successors and assigns of each such Person; provided that, solely for purposes
of Sections 6.01, 6.03 and 6.07, any Subsidiary that has not guaranteed the
Obligations of the Company hereunder will not be deemed to be a Subsidiary
Guarantor.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be such Lender's Applicable Percentage
of the aggregate Swingline Exposure.
"Swingline Lender" means JPMCB, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Debt" means, at any time, the sum of (a) all Indebtedness
that is or should be reflected as a liability on a consolidated balance sheet of
the Company and the Subsidiaries in accordance with GAAP and (b) the
consideration (other than any note of a Subsidiary that serves as a conduit in a
sale or financing transaction with respect to Receivables) received by the
Company or any Consolidated Subsidiary from any Person (other than the Company
or a Consolidated Subsidiary) for Receivables sold, which Receivables remain
uncollected at such time; less (x) the sum of all cash and cash equivalents (as
determined in accordance with GAAP), (y) the cash surrender value of life
insurance policies naming the Company as beneficiary (as determined in
accordance with GAAP) and (z) the fair market value of any Marketable Securities
of the Company and the Consolidated Subsidiaries. For the purposes of this
definition, "Marketable Securities" means any debt or equity securities for
which an active trading market exists and price quotations are available.
"Total Revolving Commitment" means, at any time, the aggregate
amount of the Revolving Commitments in effect at such time.
23
"Transactions" means the execution, delivery and performance by each
Loan Party of each Loan Document to which it is to be a party, the borrowing of
the Loans, the use of the proceeds thereof, the issuance and use of Letters of
Credit and the Refinancings.
"Type", when used in reference to (a) any Revolving Dollar Loan or
Revolving Dollar 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 and (b) any Revolving Alternate
Currency Loan or Revolving Alternate Currency 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, if provided for in the
applicable Alternate Currency Supplement, the Local Rate.
"US Dollars" or "$" means the lawful currency of the United States
of America.
"US Dollar Equivalent" means (a) as to any amount denominated in US
Dollars, the principal amount thereof, and (b) as to any amount denominated in
an Alternate Currency, the US Dollar equivalent of such amount, determined by
the Administrative Agent pursuant to Section 1.05 using the Exchange Rate with
respect to such Alternate Currency at the time in effect.
"Utilization" means, at any time, the fraction (expressed as a
percentage) the numerator of which is the aggregate Revolving Credit Exposure of
all Lenders at such time and the denominator of which is the Total Revolving
Commitment at such time, provided that at all times after the termination of the
Revolving Commitments, the Utilization shall be deemed to be greater than 50%.
"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 Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
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
24
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, 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. Unless otherwise indicated, any reference to a US Dollar amount
in Article VI or VII of this Agreement (or in any definition of a term used in
either such Article) shall be deemed to be a reference to that US Dollar amount
or the equivalent thereof in one or more other currencies.
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 Company notifies the Administrative Agent that the Company requests
an amendment to any provision 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 Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., London
time, on each Calculation Date, the Administrative Agent shall (i) determine the
Exchange Rate as of such Calculation Date with respect to each Alternate
Currency in which any Loan or Loans shall be outstanding or which shall be
available under any Alternate Currency Supplement and (ii) give notice thereof
to the Revolving Lenders and the Company. 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
Section 2.01(c), 10.13 or any other provision expressly requiring the use of a
current Exchange Rate) be the Exchange Rates employed in converting any amounts
between US Dollars and Alternate Currencies.
(b) Not later than 5:00 p.m., London time, on each Reset Date and
each date on which a Credit Event shall occur, the Administrative Agent shall
(i) determine the aggregate US Dollar Equivalent of the principal amounts of the
Loans then outstanding that are denominated in Alternate Currencies (after
giving effect to any Loans made or repaid on such date) and (ii) notify the
Company of the Aggregate Revolving Credit Exposure of the Lenders.
25
SECTION 1.06. Redenomination of Certain Foreign Currencies. (a) Each
obligation of any party to this Agreement to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London Interbank Market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) ....Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this Agreement
and (ii) without increasing any Revolving Commitment of any Revolving Lender,
all references in this Agreement to minimum amounts (or integral multiples
thereof) denominated in the national currency unit of any member state of the
European Union that adopts the Euro as its lawful currency after the date hereof
shall, immediately upon such adoption, be replaced by references to such
reasonably comparable and convenient amounts (or integral multiples thereof) in
the Euro as the Administrative Agent may specify.
(c) ....Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify in one or more written notices delivered to the Company to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties set forth herein, each
Revolving Lender agrees, severally and not jointly, to make Revolving Dollar
Loans to any Borrower at any time and from time to time during the Availability
Period in an aggregate principal amount at any time outstanding that will not
result in (i) such Lender's Revolving Credit Exposure exceeding its Revolving
Commitment or (ii) the Aggregate Revolving Credit Exposure exceeding the Total
Revolving Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Dollar Loans.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein, each Fronting Lender that is
party to any
26
Alternate Currency Supplement agrees, severally and not jointly, to
make Revolving Alternate Currency Loans to any Borrower that is a designated
Borrower under such Alternate Currency Supplement in any Alternate Currency
available under such Alternate Currency Supplement at any time and from time to
time during the Availability Period in an aggregate principal amount that will
not result in (i) any Lender's Revolving Credit Exposure exceeding its Revolving
Commitment, (ii) the Aggregate Revolving Credit Exposure exceeding the Total
Revolving Commitment or (iii) the aggregate principal amount of the Revolving
Alternate Currency Loans made by such Fronting Lender pursuant to such Alternate
Currency Supplement exceeding such Fronting Lender's Alternate Currency
Commitment (or any subcommitment of such Lender applicable to such Alternate
Currency) under such Alternate Currency Supplement; provided that a Fronting
Lender shall not be required to, and shall not, make any Revolving Alternate
Currency Loan if the Required Lenders shall have delivered to such Fronting
Lender, not later than two Business Days prior to the date on which such
Revolving Alternate Currency Loan is scheduled to be made, a notice stating that
a Default has occurred and is continuing and directing such Fronting Lender not
to make Revolving Alternate Currency Loans.
(c) In the event that any Revolving Alternate Currency Borrowing
shall be outstanding and (i) the principal of or interest on such Borrowing
shall not be paid within three Business Days after the date on which it is due
and one or more Fronting Lenders holding a majority in interest of the
outstanding Revolving Alternate Currency Loans included in such Revolving
Alternate Currency Borrowing shall deliver to the Administrative Agent and the
Company a request that the provisions of this paragraph take effect with respect
to such Borrowing or (ii) the Commitments shall be terminated or the Loans
accelerated pursuant to Article VII, then (A) the Loans included in such
Revolving Alternate Currency Borrowing and the interest accrued thereon shall
without further action be converted into obligations denominated in US Dollars
at the applicable Exchange Rate on the date of such conversion, as determined by
the Administrative Agent and set forth in a notice delivered to the Company and
each Revolving Lender, (B) each Revolving Lender shall acquire at face value a
participation in the Loans included in such Revolving Alternate Currency
Borrowing and the interest accrued thereon equal to its Applicable Percentage of
such obligations, and shall pay the purchase price for such participation by
wire transfer of immediately available funds in US Dollars to the Administrative
Agent in the manner provided in Section 2.06 (and the Administrative Agent shall
promptly wire the amounts so received to the applicable Fronting Lenders ratably
in accordance with their respective Revolving Alternate Currency Loans included
in such Revolving Alternate Currency Borrowing) and (C) such Loans converted in
accordance with clause (A) above shall at all times thereafter, until repaid in
accordance with the terms hereof, bear interest at the rate applicable to
overdue ABR Borrowings under Section 2.12(e), and the principal of and interest
on such converted Loans will be payable at the applicable times and places for
overdue ABR Borrowings. Each Revolving Lender acknowledges and agrees that its
obligation to acquire and pay for participations in Revolving Alternate Currency
Loans pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction of the Revolving Commitments, and that
each payment shall be made without any offset,
27
abatement, withholding or reduction whatsoever. The purchase of participations
in any Loan included in any Revolving Alternate Currency Borrowing pursuant to
this paragraph shall not relieve any Borrower of any default in the payment
thereof.
(d) One or more Borrowers, the Administrative Agent, the London
Agent and one or more Revolving Lenders may from time to time enter into one or
more Alternate Currency Supplements pursuant to which such Revolving Lenders may
agree to serve as Fronting Lenders in respect of one or more Alternate
Currencies. Any such Alternate Currency Supplement shall set forth the Alternate
Currency or Currencies in which Revolving Borrowings may be made under such
Alternate Currency Supplement, the Alternate Currency Commitment of each
Fronting Lender party thereto (and, if such Alternate Currency Supplement
provides for Borrowings in more than one Alternate Currency, any limits on the
amounts that may be borrowed in the particular Alternate Currencies covered
thereby), the Borrowers that may borrow under such Alternate Currency
Supplement, any special provisions for the times and places at which or the
Persons to which Borrowing Requests are to be delivered, proceeds of Borrowings
are to be disbursed or payments in respect of Borrowings are to be made or for
the rates at which interest is to accrue on Borrowings or the compensation to be
payable to Fronting Lenders and any other special provisions to be applicable to
Borrowings under such Alternate Currency Supplement. Any special provisions
referred to in the preceding sentence that shall be included in any Alternate
Currency Supplement shall be applicable to all Borrowings under such Alternate
Currency Supplement, notwithstanding any other provision of this Article II to
the contrary (and in the absence of any such special provisions, the applicable
provisions set forth in this Article II shall control). In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any Alternate Currency Supplement or any other agreement
entered into by any Borrower with any Fronting Lender relating to any Revolving
Alternate Currency Loans (other than any such inconsistency with respect to any
special provisions referred to above), the terms and conditions of this
Agreement shall control. Each Alternate Currency Supplement shall be referred to
in all notices hereunder by number, with the first Alternate Currency Supplement
entered into hereunder being referred to as "Alternate Currency Supplement No.
1" and successive Alternate Currency Supplements being referred to by the
succeeding integers in the order in which they are entered into. Multiple
Alternate Currency Supplements providing for different funding, pricing or other
arrangements may be entered into in respect of a single Alternate Currency.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Dollar Loan
shall be made as part of a Borrowing consisting of Revolving Dollar Loans made
by the Revolving Lenders ratably in accordance with their respective Revolving
Commitments. Each Revolving Alternate Currency Loan shall be made as part of a
Borrowing consisting of Revolving Alternate Currency Loans made to a single
Borrower pursuant to the same Alternate Currency Supplement, denominated in the
same Alternate Currency and made by the applicable Fronting Lenders ratably in
accordance with their respective applicable Alternate Currency Commitments under
such Alternate Currency Supplement. 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
28
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, (i) each Revolving Dollar Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as the applicable
Borrower may request in accordance herewith and (ii) each Revolving Alternate
Currency Borrowing shall be comprised entirely of Eurocurrency Loans (or Local
Rate Loans, if specified in the applicable Alternate Currency Supplement). Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurocurrency Loan or Local Rate Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of any Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Revolving
Borrowing, such Borrowing shall be in an aggregate amount that is at least equal
to the Borrowing Minimum and an integral multiple equal to the Borrowing
Multiple; provided that an ABR Revolving Borrowing may be in an aggregate amount
that is equal to the entire unused balance of the Total Revolving Commitment or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that
is an integral multiple of $1,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 12 Eurocurrency Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall 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 Revolving Borrowings. To request a
Revolving Borrowing, the applicable Borrower shall notify the Applicable Agent
of such request by telephone (a) in the case of a Eurocurrency Borrowing, not
later than 11:00 a.m., Local Time, three Business Days before the date of the
proposed Borrowing, (b) in the case of a Local Rate Borrowing, not later than
the time specified in the applicable Alternate Currency Supplement or (c) in the
case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the
Business Day of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Applicable Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing and, if applicable, the
Alternate Currency Supplement under which such Borrowing is to be made;
(ii) the Type of such Borrowing;
(iii) the currency of such Borrowing;
29
(iv) the amount of such Borrowing;
(v) the date of such Borrowing, which shall be a Business Day;
(vi) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period";
(vii) the location and number of the relevant Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.06(a); and
(viii) in the case of a Borrowing in an Alternate Currency, the
location from which payments of the principal of and interest on such
Borrowing will be made.
If no election as to the currency of the Revolving Borrowing is specified, then
the requested Borrowing shall be denominated in US Dollars. If no election as to
the Type of Revolving Borrowing is specified, then the requested Borrowing shall
be an ABR Borrowing if denominated in US Dollars or a Eurocurrency Borrowing if
denominated in an Alternate Currency. If no Interest Period is specified with
respect to any requested Eurocurrency Revolving Borrowing, then the requesting
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, the Applicable Agent shall advise each Lender (other than the
Swingline Lender) of the details thereof and of the amount of such Lender's Loan
to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
in US Dollars to the Company from time to time during the Availability Period in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$25,000,000 or (ii) the Aggregate Revolving Credit Exposure exceeding the Total
Revolving Commitment; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Company may borrow, prepay and reborrow Swingline Loans.
(b) ....To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received by it. The Swingline Lender shall make each Swingline Loan
available to the Company by means of a credit to the general deposit account of
the Company with the Swingline Lender (or, in the case of a Swingline Loan made
to finance the reimbursement of an LC
30
Disbursement as provided in Section 2.05(e), by remittance to the applicable
Issuing Bank) by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which the Revolving
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Revolving Lender hereby unconditionally and irrevocably
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligations under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Company of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Company (or other party on behalf of the Company)
in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Revolving Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such payment
so remitted shall be repaid to the Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be
refunded to the Company for any reason. The purchase of participations in a
Swingline Loan pursuant to this paragraph shall not relieve the Company of any
default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Company may request the issuance of Letters
of Credit, denominated in US Dollars, for its own account or the account of any
Subsidiary (provided that the Company shall be a co-applicant and co-obligor
with respect to each Letter of Credit issued for the account of any Subsidiary),
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.
In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any
31
form of letter of credit application or other agreement submitted by the Company
to, or entered into by the Company with, an Issuing Bank relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the applicable Issuing Bank) to the
applicable Issuing Bank and the Administrative Agent (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), the amount of such Letter of Credit, 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 such
Issuing Bank, the Company 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
Company 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 $40,000,000, (ii) no Lender's Revolving Credit Exposure shall exceed its
Revolving Commitment and (iii) the Aggregate Revolving Credit Exposure shall not
exceed the Total Revolving Commitment.
(c) Expiration Date. Each Letter of Credit will expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the 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 any Issuing Bank or the Lenders, each Issuing Bank
hereby grants to each Revolving Lender, and each Revolving 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 Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of each Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank
and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Company for any reason. Each Revolving 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
32
the occurrence and continuance of a Default or the reduction or termination of
the Revolving 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 Company shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Company shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Company prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Company receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $1,000,000, the Company may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Company's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Company fails to
make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the
applicable LC Disbursement, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Company pursuant to this
paragraph, the Administrative Agent shall distribute such payment to such
Issuing Bank or, to the extent that Revolving Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any
LC Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
33
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, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's obligations hereunder. Neither
the Agents, the Lenders nor any Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of any Issuing Bank;
provided that the foregoing shall not be construed to excuse any Issuing Bank
from liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Company to the fullest extent permitted by applicable law) suffered by the
Company that are caused by (i) such Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or (ii) such Issuing Bank's breach of its
obligation to issue a Letter of Credit pursuant to this Section. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of any Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, each Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The applicable Issuing Bank shall
promptly notify the Administrative Agent and the Company 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 Company of its obligation to
reimburse such Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC
Disbursement, then, unless the Company 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 the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if
the Company fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(e) shall apply. Interest
accrued pursuant to this paragraph shall be for the
34
account of the applicable Issuing Bank, except that interest accrued on and
after the date of payment by any Revolving Lender pursuant to paragraph (e) of
this Section to reimburse such Issuing Bank shall be for the account of such
Lender pro rata to the extent of such payment.
(i) Replacement of an Issuing Bank. Any Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of an Issuing Bank. At
the time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(c). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
replaced Issuing Bank under this Agreement with respect to Letters of Credit to
be issued thereafter and (ii) references herein to the term "Issuing Bank" shall
be deemed to refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require. After
the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day on which the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposures representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Revolving Lenders, an amount in cash equal to the LC Exposure as
of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Company described in clause (h) or (i) of Article VII. Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the Obligations, and the Company hereby creates in favor of
the Administrative Agent a security interest in each such deposit to secure such
Obligations. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Company's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse any
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Company for the LC Exposure at such time or, if
the maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy
35
other obligations of the Borrowers under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived.
(k) Existing Letters of Credit. Each letter of credit listed on
Schedule 2.05 shall be deemed, for all purposes of this Agreement, to be a
Letter of Credit issued under this Section.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds in the applicable currency by 11:00 a.m., Local
Time, to the account of the Applicable Agent most recently designated by it for
such purpose for Loans of such currency by notice to the applicable Lenders;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Applicable Agent will make such Loans available to the applicable Borrower by
promptly crediting the amounts so received, in like funds, to an account of such
Borrower maintained by the Applicable Agent (i) in New York City, in the case of
Revolving Dollar Loans, or (ii) in London (or such other place as may be
specified in an applicable Alternate Currency Supplement), in the case of
Revolving Alternate Currency Loans; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the applicable Issuing Bank. If
a Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, the Applicable Agent shall return the amounts
so received to the respective Lenders.
(b) Unless the Applicable Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Applicable Agent such Lender's share of such Borrowing,
the Applicable Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount in the required currency. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the
Applicable Agent, then the applicable Lender and the Borrowers severally agree
to pay to the Applicable Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is
made available to the applicable Borrower to but excluding the date of payment
to the Applicable Agent, at (i) in the case of such Lender, a rate determined by
the Applicable Agent to represent its cost of overnight or short-term funds in
the relevant currency (which determination shall be conclusive absent manifest
error) or (ii) in the case of a Borrower, the interest rate applicable at the
time to the Loans comprising such Borrowing. If such Lender pays such amount to
the Applicable Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the
36
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section and on terms
consistent with the other provisions of this Agreement and, in the case of any
Revolving Alternate Currency Borrowing, the applicable Alternate Currency
Supplement. The applicable Borrower may elect different options with respect to
different portions of the affected Revolving Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. Notwithstanding the foregoing, a Borrower may
not (i) elect to convert the currency in which any Loans are denominated, (ii)
elect to convert Revolving Alternate Currency Loans to ABR Loans, (iii) elect an
Interest Period for Eurocurrency Loans that does not comply with Section
2.02(d), (iv) elect to convert any Loans to Eurocurrency Loans that would result
in the number of Eurocurrency Borrowings exceeding the maximum number of
Eurocurrency Borrowings permitted under Section 2.02(c), (v) elect an Interest
Period for Eurocurrency Loans unless the aggregate outstanding principal amount
of Eurocurrency Loans (including any Eurocurrency Loans made to the same
Borrower in the same currency on the date that such Interest Period is to begin)
to which such Interest Period will apply complies with the requirements as to
minimum principal amount set forth in Section 2.02(c) or (vi) convert any
Borrowing of a Borrower to a Borrowing of another Borrower. This Section shall
not apply to Swingline Loans, which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower shall
notify the Applicable Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent and, if such Agent is not the
Administrative Agent, to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
applicable Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) the Type of the resulting Borrowing; and
37
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If by any such Interest Election Request a Borrower requests a Eurocurrency
Borrowing but does not specify an Interest Period, then such Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Applicable Agent shall advise each applicable Lender of the details thereof and
of such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request to the Applicable Agent electing to convert or continue the Loans
included in any Borrowing as provided in this Section and has not theretofore
delivered a notice of prepayment relating to such Loans, then such Borrower
shall be deemed to have given the Applicable Agent, at the time by which such an
Interest Election Request would have been required to be submitted, an Interest
Election Request electing (i) in the case of Revolving Dollar Loans, to convert
such Loans to (or continue such Loans as) ABR Loans and (ii) in the case of
Loans denominated in any Alternate Currency, to convert such loans to (or
continue such Loans as) Eurocurrency Loans with an Interest Period of one
month's duration, with such additional Interest Period commencing on the last
day of the then current Interest Period.
(f)Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders (or, for purposes of clause (iii) below, Lenders
holding a majority in interest of the Revolving Alternate Currency Loans) shall
so notify the Company, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a
Eurocurrency Borrowing, (ii) unless repaid, each Eurocurrency Revolving Dollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto and (iii) each Revolving Alternate Currency Borrowing
shall become due and payable on the last day of the Interest Period applicable
thereto. The foregoing is without prejudice to the other rights and remedies
available hereunder upon an Event of Default.
SECTION 2.08. Termination of Commitments; Reductions and Increases
of Commitments. (a) Unless previously terminated, the Revolving Commitments and
the Alternate Currency Commitments shall terminate on the Maturity Date.
(b) The Company may at any time, without premium or penalty,
terminate, or from time to time reduce, the Commitments; provided that (i) each
such reduction shall be in an amount that is at least equal to the Borrowing
Minimum and an integral multiple equal to the Borrowing Multiple and (ii) the
Company shall not terminate or reduce the Revolving Commitments if, after giving
effect to any concurrent prepayment of the Revolving Borrowings in accordance
with Section 2.10, the Aggregate Revolving Credit Exposure would exceed the
Total Revolving Commitment.
38
(c) Each reduction in the Revolving Commitments or in the Alternate
Currency Commitments under any Alternate Currency Supplement shall be made
ratably among the Revolving Lenders or the Fronting Lenders party to such
Alternate Currency Supplement, as the case may be, in accordance with their
respective Revolving Commitments or Alternate Currency Commitments under such
Alternate Currency Supplement, as applicable.
(d) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments or Alternate Currency Commitments
delivered by the Company may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent.
(e) (i) The Company may, at any time and from time to time, by
written notice to the Administrative Agent (which shall deliver a copy thereof
to each Lender), request that the Total Revolving Commitment be increased by an
amount that, together with all prior increases in the Revolving Commitments
pursuant to this Section, does not exceed $100,000,000. Such notice shall set
forth the amount of the requested increase in the Total Revolving Commitment
(which shall be an integral multiple of $10,000,000) and the date on which such
increase is requested to become effective (which shall not be less than 10
Business Days or more than 60 days after the date of such notice), and shall
offer to each Lender the opportunity to increase its Revolving Commitment by its
Applicable Percentage of the proposed increased amount. Each Lender shall, by
notice to the Company and the Administrative Agent given not more than 10 days
after the date on which the Administrative Agent shall have delivered the
Company's notice, either agree to increase its Revolving Commitment by all or a
portion of the offered amount (each Lender so agreeing being an "Increasing
Lender") or decline to increase its Revolving Commitment (and any Lender that
does not deliver such notice within such period of 10 days shall be deemed to
have declined to increase its Revolving Commitment) (each Lender so declining or
being deemed to have declined being a "Non-Increasing Lender"). If, on the 10th
day after the Administrative Agent shall have delivered the Company's notice,
the Lenders shall have agreed pursuant to the preceding sentence to increase
their Revolving Commitments by an aggregate amount less than the increase in the
Total Revolving Commitment requested by the Company, the Company may arrange for
one or more banks or other financial institutions (any such bank or other
financial institution referred to in this clause (a) being called an "Augmenting
Lender"), which may include any Lender, to extend Revolving Commitments or
increase their existing Revolving Commitments in an aggregate amount equal to
the unsubscribed amount; provided that each Augmenting Lender, if not already a
Lender hereunder, shall be subject to the reasonable approval of the
Administrative Agent and each Augmenting Lender shall
39
execute all such documentation as the Administrative Agent shall specify to
evidence its Revolving Commitment and/or its status as a Lender hereunder. Any
increase in the Total Revolving Commitment may be made in an amount which is
less than the increase requested by the Company if the Company is unable to
arrange for, or chooses not to arrange for, Augmenting Lenders.
(ii) On the effective date (the "Increase Effective Date") of any
increase in the Total Revolving Commitment pursuant to this clause (e)
(the "Commitment Increase"), (i) the aggregate principal amount of the
Loans outstanding (the "Outstanding Loans") immediately prior to giving
effect to the Commitment Increase on the Increase Effective Date shall be
deemed to be paid; (ii) each Increasing Lender and each Augmenting Lender
that shall have been a Lender prior to the Commitment Increase shall pay
to the Administrative Agent in same day funds an amount equal to the
difference between (A) the product of (1) such Lender's Applicable
Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter
defined) and (B) the product of (1) such Lender's Applicable Percentage
(calculated without giving effect to the Commitment Increase) multiplied
by (2) the amount of the Outstanding Loans; (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall
pay to the Administrative Agent in same day funds an amount equal to the
product of (1) such Augmenting Lender's Applicable Percentage (calculated
after giving effect to the Commitment Increase) multiplied by (2) the
amount of the Subsequent Borrowings; (iv) after the Administrative Agent
receives the funds specified in clauses (ii) and (iii) above, the
Administrative Agent shall pay to each Non-Increasing Lender the portion
of such funds that is equal to the difference between (A) the product of
(1) such Non-Increasing Lender's Applicable Percentage (calculated without
giving effect to the Commitment Increase) multiplied by (2) the amount of
the Outstanding Loans, and (B) the product of (1) such Non-Increasing
Lender's Applicable Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings; (v) after the effectiveness of the Commitment Increase, the
Company shall be deemed to have made new Borrowings (the "Subsequent
Borrowings") in an aggregate principal amount equal to the aggregate
principal amount of the Outstanding Loans and of the Types and for the
Interest Periods specified in a borrowing request delivered in accordance
with Section 2.03; (vi) each Non-Increasing Lender, each Increasing Lender
and each Augmenting Lender shall be deemed to hold its Applicable
Percentage of each Subsequent Borrowing (each calculated after giving
effect to the Commitment Increase); and (vii) the Company shall pay to
each Increasing Lender and each Non-Increasing Lender any and all accrued
but unpaid interest on the Outstanding Loans. The deemed payments made
pursuant to clause (i) above in respect of each Eurodollar Loan shall be
subject to indemnification by the Company pursuant to the provisions of
Section 2.16 if the Increase Effective Date occurs other than on the last
day of the Interest Period relating thereto.
40
(iii) Notwithstanding the foregoing, no increase in the Total
Revolving Commitment (or in the Revolving Commitment of any Lender) or
addition of a new Lender shall become effective under this clause (e)
unless, (i) on the Increase Effective Date, the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied (with all
references in such paragraphs to a Borrowing being deemed to be references
to such increase or addition and without giving effect to the
parenthetical in Section 4.02(a)) and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by the
President, a Vice President or a Financial Officer of the Company; and
(ii) the Administrative Agent shall have received (with sufficient copies
for each of the Lenders) documents consistent with those delivered on the
Effective Date under Section 4.01(b), (c) and (f), giving effect to such
increase or addition.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay to the Applicable Agent for the
accounts of the applicable Lenders the then unpaid principal amount of each
Revolving Loan of such Lender on the Maturity Date (or, in the case of a
Revolving Alternate Currency Borrowing, such earlier date as may be specified in
the applicable Alternate Currency Supplement). The Company hereby
unconditionally promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan made to the Company on the earlier of
the Maturity Date and the first date after such Swingline Loan is made that is
the 15th day or the last day of a calendar month and that is at least two
Business Days after the day on which such Swingline Loan shall have been made;
provided that on each date on which a Revolving Dollar Borrowing is made by the
Company, the Company shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
(and, in the case of a Revolving Alternate Currency Loan, the currency) thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent or the London Agent hereunder for the account of the Lenders and each
Lender's share thereof. The information contained in such accounts will be made
available to the Company at reasonable times and upon reasonable request.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
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(e) Any Lender may request that Loans made by it to any Borrower be
evidenced by a promissory note. In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Company and the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
10.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to Section 2.16 (but otherwise without premium or
penalty) and the requirements of this Section.
(b) If, on the last day of any Interest Period for any Eurocurrency
Revolving Borrowing, or on any Interest Payment Date for any ABR Revolving
Borrowing or any Borrowing under an Alternate Currency Supplement bearing
interest at a Local Rate (i) the Revolving Credit Exposure of any Revolving
Lender exceeds its Revolving Commitment or (ii) the Aggregate Revolving Credit
Exposure exceeds the Total Revolving Commitment, the applicable Borrower shall,
on such day, prepay the Revolving Loans comprising such Borrowing in an amount
equal to the lesser of (i) the amount necessary to eliminate such excess and
(ii) the amount of such Borrowing. If, on any Reset Date, the Aggregate
Revolving Credit Exposure exceeds 105% of the Total Revolving Commitment, then
the Company shall prepay (or shall cause a Borrowing Subsidiary to prepay),
within three Business Days, one or more Revolving Borrowings or Swingline
Borrowings in an aggregate principal amount equal to the excess, if any, of the
Aggregate Revolving Credit Exposure (as of such Reset Date) over the Total
Revolving Commitment.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Company or any Subsidiary in respect of any
Prepayment Event, (i) the Company shall prepay (or shall cause a Borrowing
Subsidiary to prepay), within three Business Days after such Net Proceeds are
received, Borrowings, if any shall be outstanding, in an aggregate amount equal
to the Pro Rata Proceeds in respect of such Prepayment Event and (ii) the Total
Revolving Commitment shall be reduced by such amount, with a pro rata reduction
of each Revolving Lender's Revolving Commitment; provided that, in the case of
any event described in clause (a) of the definition of the term "Prepayment
Event", if the Company shall deliver to the Administrative Agent a certificate
of a Financial Officer to the effect that the Company and the Subsidiaries
intend to apply the Net Proceeds from such event (or a portion thereof specified
in such certificate), within 180 days after receipt of such Net Proceeds, to
acquire real property, equipment or other assets to be used in the business of
the Company and the Subsidiaries, and certifying that no Default has occurred
and is continuing, then no prepayment shall be required and no reduction shall
be made pursuant to this paragraph in respect of the Net Proceeds of such event
(or the portion of such Net Proceeds specified in such certificate, if
applicable) except to the extent of any Net Proceeds therefrom that have not
42
been so applied by the end of such 180-day period, at which time a prepayment
shall be required, and a reduction shall be made, in an amount equal to 75% of
such Net Proceeds not so applied multiplied by the fraction indicated in clause
(b) of the definition of "Pro Rata Proceeds" (calculated as of the date of the
Prepayment Event giving rise to such Net Proceeds).
(d) On the date of any termination or reduction of the Revolving
Commitments pursuant to Section 2.08, the Company shall pay or prepay (or shall
cause a Borrowing Subsidiary to pay or prepay) so much of the Revolving
Borrowings as shall be necessary in order that the Aggregate Revolving Credit
Exposure shall not exceed the Total Revolving Commitment after giving effect to
such termination or reduction.
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Company shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section; provided that each prepayment of Revolving Dollar
Borrowings shall be applied first to prepay any such Borrowings outstanding as
ABR Borrowings.
(f) The Company shall notify the Applicable Agent (and, in the case
of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by telecopy) of any prepayment hereunder (i) in the case of a prepayment of a
Eurocurrency Revolving Borrowing, not later than 11:00 a.m., Local Time, three
Business Days before the date of prepayment, (ii) in the case of a prepayment of
an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment, (iii) in the case of a Local Rate
Borrowing, not later than the time specified in the applicable Alternate
Currency Supplement and (iv) in the case of prepayment of a Swingline Loan, not
later than 12:00 noon, New York City time, on the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid and shall
set forth in reasonable detail the calculation of the amount of such prepayment;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Borrowing, the Applicable Agent shall
advise the applicable Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
(a "Commitment Fee"), which shall accrue at the Applicable Margin on the daily
unused amount of the Revolving Commitment of such Revolving Lender, in each case
during the period from and including the date hereof to but excluding the date
on which such
43
Revolving Commitment expires or is terminated. Accrued Commitment Fees shall be
payable in arrears on the last day of March, June, September and December of
each year, commencing on the first such date to occur after the date hereof, and
on the date on which the Revolving Commitments expire or are terminated. All
Commitment Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). For purposes of computing commitment fees with respect
to Revolving Commitments, a Revolving Commitment of a Revolving Lender shall be
deemed to be used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The Company agrees to pay (or to cause the applicable Borrowing
Subsidiary to pay) (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee (an "Alternate Currency Participation Fee")
with respect to its obligation under Section 2.01(c) to acquire participations
in Revolving Alternate Currency Loans, which shall accrue at the Applicable
Margin used to determine the interest rate applicable to Eurocurrency Revolving
Loans on the daily amount of such Revolving Lender's Alternate Currency Exposure
(excluding any portion thereof attributable to Revolving Alternate Currency
Loans that have been converted to US Dollar obligations and in respect of which
such Lender has made, or is required to have made, payments to the applicable
Fronting Lenders, all as provided in Section 2.01(c)) during the period from and
including the date hereof to but excluding the later of the date on which such
Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any Alternate Currency Exposure, and (ii) to each Fronting Lender
a fronting fee (an "Alternate Currency Fronting Fee"), which shall accrue at the
rate of .125% per annum on the daily aggregate amount of the US Dollar
Equivalents of such Fronting Lender's Revolving Alternate Currency Loans during
the period from and including the date hereof to but excluding the later of the
date of termination of the Revolving Commitments and the date on which there
cease to be any Revolving Alternate Currency Loans outstanding. Alternate
Currency Participation Fees and Alternate Currency Fronting Fees accrued under
this paragraph through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the date hereof;
provided that all such Fees shall be payable on the date on which the Revolving
Commitments terminate and any such Fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. All Alternate
Currency Participation Fees and Alternate Currency Fronting Fees payable under
this paragraph shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Company agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee (an "LC Participation
Fee") with respect to its participations in Letters of Credit, which shall
accrue at the Applicable Margin used in determining the interest on Eurocurrency
Revolving Loans on the daily amount of such Lender's LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the date hereof to but excluding the later of the date on
which such Lender's Revolving Commitment
44
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to each Issuing Bank, a fronting fee (an "LC Fronting Fee"), which shall
accrue at the rate of .125% per annum on the average daily undrawn amount of the
outstanding Letters of Credit issued by such Issuing Bank during the period from
and including the date hereof to but excluding the later of the date of
termination of the Revolving Commitments and the date on which the last of such
Letters of Credit expires, terminates or is drawn in full, as well as such
Issuing Bank's standard fees ("Issuing Bank Fees") with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. LC Participation Fees and LC Fronting Fees accrued through
and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such
Fees shall be payable on the date on which the Revolving Commitments terminate
and any such Fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to any Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All LC
Participation Fees and LC Fronting Fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) The Company agrees to pay to the Administrative Agent, for its
own account, fees in the amounts and at the times separately agreed upon in
writing between the Company and the Administrative Agent.
(e) The Company agrees to pay, through the Administrative Agent,
upfront fees in the amounts heretofore communicated to the Revolving Lenders by
the Company and the Administrative Agent.
(f) All fees payable hereunder shall be paid on the dates on which
due, in immediately available funds, to the Administrative Agent (or to any
Fronting Lender or Issuing Bank, in the case of fees payable to it) for
distribution, in the case of Commitment Fees, Alternate Currency Participation
Fees, LC Participation Fees and up front fees, to the Revolving Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Revolving Dollar
Borrowing shall bear interest at the Adjusted LIBO Rate for US Dollars for the
Interest Period in effect for such Borrowing plus the Applicable Margin.
(c) The Loans comprising each Eurocurrency Revolving Alternate
Currency Borrowing shall bear interest at the Adjusted LIBO Rate for the
currency of and the Interest Period in effect for such Borrowing plus the
Applicable Margin.
45
(d) The Loans comprising each Local Rate Revolving Borrowing shall
bear interest at the rate or rates set forth in the applicable Alternate
Currency Supplement.
(e) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, to the fullest extent permitted by
applicable law, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(f) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (e) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurocurrency Revolving Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(g) All interest hereunder shall be computed on the basis of a year
of 360 days, except that (i) interest on Borrowings denominated in Sterling and
(ii) interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or Local Rate shall be determined by the Applicable Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines or is notified by the
Required Lenders (or, in the case of a Revolving Alternate Currency
Borrowing, one or more Fronting Lenders required to make Revolving
Alternate Currency Loans included in such Borrowing) that deposits in the
principal amounts of the Loans comprising such Borrowing and in the
currency in which such Loans are to be denominated are not generally
available in the relevant market; or
(b) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
46
(c) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Revolving Alternate Currency Borrowing, one or more
Fronting Lenders required to make Revolving Alternate Currency Loans
included in such Borrowing) that the Adjusted LIBO Rate for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist (it being agreed that
the Administrative Agent will so notify the Company promptly after it becomes
aware that such circumstances no longer exist), any request by a Borrower for a
Borrowing of the affected Type or in the affected currency, or a conversion to
or continuation of a Borrowing of the affected Type or in the affected currency,
pursuant to Section 2.03 or 2.07 shall be deemed rescinded and each outstanding
Borrowing of the affected Type or in the affected currency that shall not be
repaid at the end of the then applicable Interest Period shall thereafter bear
interest at the Applicable Margin for Eurocurrency Loans plus a rate determined
by the Administrative Agent to be representative of the Lenders' cost of funding
such Borrowing. Each determination by the Administrative Agent hereunder shall
be conclusive absent manifest error.
SECTION 2.14. Increased Costs. (a) If any Change in Law (other than
any Change in Law relating to Taxes, which shall be governed by Section 2.17)
shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Company will pay to such Lender or such Issuing Bank, as the case may be, within
15 days, such additional amount or amounts as will compensate such Lender or
such Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the capital
of such Lender's or
47
such Issuing Bank's holding company, if any, as a consequence of this Agreement
or the Loans made by, or participations in Letters of Credit held by, such
Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender or
such Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender's or such Issuing
Bank's holding company for any such reduction suffered.
(c) If the cost to any Lender of making or maintaining any Loan to,
or participating in any Letter of Credit or of any Issuing Bank of issuing or
maintaining any Letter of Credit to, a Borrowing Subsidiary is increased (or the
amount of any sum received or receivable by any Lender (or its applicable
lending office) or any Issuing Bank is reduced) by an amount deemed in good
faith by such Lender or such Issuing Bank to be material, by reason of the fact
that such Borrowing Subsidiary is incorporated in, has its principal place of
business in, or borrows from, a jurisdiction outside the United States, such
Lender or such Issuing Bank shall provide prompt notice thereof to the Company
and such Borrowing Subsidiary shall indemnify such Lender or such Issuing Bank
for such increased cost or reduction within 10 days after demand by such Lender
or such Issuing Bank (with a copy to the Administrative Agent); provided that
failure by such Lender or such Issuing Bank to provide prompt notice pursuant to
this Section will not impair its rights to indemnification under this Section
(except, and only to the extent, such Borrowing Subsidiary suffers an actual
loss by the failure to provide such notice within 180 days from the incurrence
of such increased cost). A certificate of such Lender or such Issuing Bank
claiming compensation under this paragraph and setting forth the additional
amount or amounts to be paid to it hereunder (and the basis for the calculation
of such amount or amounts) shall be conclusive in the absence of manifest error.
(d) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(e) Failure or delay on the part of any Lender or any Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Company shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or such Issuing Bank, as the
case may be, notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
48
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision herein, if, after the date hereof, (i) any Change in Law shall make it
unlawful for any Lender to make or maintain any Eurocurrency Loan or any
Revolving Alternate Currency Loan or (ii) there shall have occurred any change
in national or international financial, political or economic conditions
(including the imposition of or any change in exchange controls) or currency
exchange rates which would make it impracticable for any Fronting Lender to make
any Revolving Alternate Currency Loans, then, by written notice to the Company
and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans or Revolving
Alternate Currency Loans (in the affected currency or currencies), as the
case may be, will not thereafter (for the duration of such unlawfulness or
impracticability) be made by such Lender hereunder, whereupon any request
for a Eurocurrency Borrowing or Revolving Alternate Currency Borrowing (in
the affected currency or currencies), as the case may be, shall, as to
such Lender only, be deemed (A) in the case of a request for a Revolving
Dollar Loan, a request for an ABR Loan or (B) in the case of a request for
a Revolving Alternate Currency Loan, to have been withdrawn; and
(ii) such Lender may require (A) that all affected Eurocurrency
Revolving Dollar Loans made by it be converted to ABR Loans, and (B) that
all affected Eurocurrency Revolving Alternate Currency Loans made by it be
prepaid, in which event all such Eurocurrency Loans shall be automatically
converted to ABR Loans or prepaid, as the case may be, as of the effective
date of such notice as provided in paragraph (b) of this Section.
In the event any Lender shall exercise its rights under clause (i) or (ii)
above, all payments and prepayments of principal which would otherwise have been
applied to repay the Eurocurrency Revolving Dollar Loans that would have been
made by such Lender or the converted Eurocurrency Revolving Dollar Loans of such
Lender shall instead be applied to repay the ABR Loans made by such Lender in
lieu of, or resulting from the conversion of, such Eurocurrency Loans.
(b) For purposes of this Section, a notice to the Company by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Company.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto, (d) the conversion of
49
and purchase of participations in any Revolving Alternate Currency Loan pursuant
to Section 2.01(c) or (e) the assignment of any Eurocurrency Loan other than on
the last day of the Interest Period applicable thereto as a result of a request
by the Company pursuant to Section 2.19, then, in any such event, the applicable
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan, such loss, cost
or expense to any Lender shall be deemed to include an amount determined by such
Lender in good faith to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in the
applicable currency of a comparable amount and period from other banks in the
Eurocurrency market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of any Loan Party hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes, except as required by law; provided that if any Loan Party shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, the London Agent, each
Lender or each Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Company shall pay, or shall cause the
applicable Loan Party to pay, any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Company shall indemnify, or shall cause the applicable Loan
Party to indemnify, the Administrative Agent, the London Agent, each Lender and
each Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
the London Agent, such Lender or such Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of a Loan Party
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such
50
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority; provided that the Company shall have no
obligation to pay or cause to be paid any amounts in respect of Indemnified
Taxes or Other Taxes if it is not the customary practice of the Lender at the
time such taxes are assessed or imposed to claim reimbursement for, or indemnity
with respect to, such taxes in respect of similar payments or transactions
involving similarly situated borrowers. A certificate as to the amount of such
payment or liability delivered to the Company by a Lender or an Issuing Bank or
by the Administrative Agent or the London Agent, on its own behalf or on behalf
of a Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company or any other Loan Party to a Governmental Authority,
the Company shall deliver, or shall cause such Loan Party to deliver, to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement or any other Loan Document shall
deliver to the Company (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law and after receiving written notice from the
Company, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Company as will permit such
payments to be made without withholding or at a reduced rate; provided that such
Foreign Lender shall not be required to deliver such documentation with respect
to an entitlement to an exemption from or reduction of withholding tax that was
not in effect on the date such Lender became a party to this Agreement.
(f) If the Administrative Agent, the London Agent, a Lender or an
Issuing Bank reasonably determines that it has received a refund of any Taxes as
to which it has been indemnified by any Loan Party or with respect to which any
Loan Party has paid additional amounts pursuant to this Section, it shall pay
over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under this Section
with respect to the Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent, the London Agent, such
Lender or such Issuing Bank and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); provided,
however, that such Loan Party agrees to pay, upon the request of the
Administrative Agent, the London Agent, such Lender or such Issuing Bank, the
amount paid to such Loan Party (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent, the
London Agent, such Lender or such Issuing Bank in the event the Administrative
Agent, the London Agent, such Lender or such Issuing Bank is required to repay
such refund to such Governmental Authority. Nothing contained in this paragraph
shall require the Administrative Agent, the London Agent, any Lender or any
Issuing Bank to make available its tax returns (or any other
51
information relating to its Taxes that it deems confidential) to any Loan Party
or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.16 or 2.17, or otherwise) prior to 12:00 noon, Local Time at the place of
payment, on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may be deemed, in
the discretion of the Applicable Agent, to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. Unless and
until otherwise specified, all such payments shall be made to the Administrative
Agent at its offices at 270 Park Avenue, New York, New York, except that
payments (i) in respect of Alternate Currency Borrowings shall be made to the
London Agent at its offices at 125 London Wall, London, England, (ii) expressly
specified hereunder to be made directly to an Issuing Bank or the Swingline
Lender shall be so directly made, (iii) pursuant to Sections 2.14, 2.16 or 2.17
and 10.03 shall be made directly to the Persons entitled thereto and (iv)
pursuant to other Loan Documents shall be made to the Persons specified therein.
Each such payment shall be made in US Dollars, except that the principal of and
interest on any Loan denominated in an Alternate Currency shall be made in such
currency. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available
to any Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in Revolving Alternate
Currency Loans, LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in Revolving Alternate Currency Loans, LC
Disbursements or Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in Revolving Alternate Currency Loans, LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the
52
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Revolving Alternate Currency Loans, LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, unless the Lender
from which such payment is recovered is required to pay interest thereon, in
which case each Lender returning funds to such Lender shall pay its pro rata
share of such interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by a Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in Revolving Alternate Currency Loans, LC
Disbursements or Swingline Loans to any assignee or participant, other than to
the Company or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice from a
Borrower prior to the date on which any payment is due to such Agent for the
account of the Lenders or the Issuing Banks hereunder that such Borrower will
not make such payment, the Applicable Agent may assume that such Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Banks, as the case may
be, the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Banks, as the case may be,
severally agrees to repay to the Applicable Agent forthwith on demand the amount
so distributed to such Lender or such Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Applicable Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Applicable Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it hereunder, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent or the London Agent for the account of such
Lender to satisfy such Lender's obligations until all such unsatisfied
obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if any Loan Party is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
53
eliminate or reduce amounts payable pursuant to Section 2.14 or 2.17, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrowers agree to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if
any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in Revolving Alternate Currency Loans, LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrowers (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
SECTION 2.20. Borrowing Subsidiaries. On or after the Effective
Date, the Company may designate any Subsidiary of the Company as a Borrowing
Subsidiary by delivery to the Administrative Agent of a Borrowing Subsidiary
Agreement executed by such Subsidiary and the Company, and upon such delivery
such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement until the Company shall have executed
and delivered to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Borrowing Subsidiary at a time when any principal of or interest on any
Loan to such Borrowing Subsidiary shall be outstanding hereunder; provided that
such Borrowing Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement. As
soon as practicable upon receipt of a Borrowing Subsidiary Agreement, the
Administrative Agent shall send a copy thereof to each Lender.
54
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders as to itself and
each Subsidiary, and each Borrowing Subsidiary represents and warrants to the
Lenders as to itself and its subsidiaries, as follows:
SECTION 3.01. Organization; Powers. The Company and each of the
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business,
and is in good standing, in every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Company and constitutes, and each other Loan Document to which any Loan Party is
to be a party, when executed and delivered by such Loan Party, will constitute,
a legal, valid and binding obligation of the Company or such Loan Party, as the
case may be, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with or
any other action by any Governmental Authority, or the expiration of any waiting
or similar period imposed by law or by any Governmental Authority, except such
as have been obtained or made and are in full force and effect or have expired,
as the case may be, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of the Company or any other
Loan Party or any order of any Governmental Authority, (c) will not violate or
result in a default under any material indenture, agreement or other instrument
binding upon the Company or any Subsidiary or their assets (other than
agreements relating to Indebtedness to be repaid as part of the Refinancings),
or give rise to a right thereunder to require any payment to be made by the
Company or any Subsidiary, and (d) will not result in the creation or imposition
of any Lien on any asset of the Company or any Subsidiary, except any Liens
created under the Loan Documents.
SECTION 3.04. Financial Statements; No Material Adverse Change. (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, retained earnings and cash flows as of and for
the fiscal year ended December 31, 2005, reported on by PricewaterhouseCoopers
LLP, independent public accountants. Such financial statements present fairly,
in all material respects, the
55
financial position and results of operations and cash flows of the Company and
its Consolidated Subsidiaries as of such date and for such period in accordance
with GAAP.
(b) There has been no Material Adverse Change since December 31,
2005.
SECTION 3.05. Properties; Liens. (a) The Company and each Subsidiary
has good title to, or valid leasehold interests in, all its real and personal
properties and assets material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize its properties and assets for their intended
purposes. All such owned properties and assets, and all such leasehold
interests, are free and clear of Liens, other than Liens expressly permitted
under Section 6.02.
(b) The Company and each Subsidiary owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Company and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) Except as
disclosed on Schedule 3.06, there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Company, threatened against or affecting the Company or any of
the Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect or (ii)
that involve any of the Loan Documents or the Transactions.
(b) Neither the Company nor any Subsidiary (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability, except, in each case, for failures and liabilities
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(c) Since the Effective Date, there has been no change in the status
of the Disclosed Matters or Environmental Liabilities that, individually or in
the aggregate, has materially increased the likelihood of a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws. The Company and each Subsidiary
is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to be in
compliance, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
56
SECTION 3.08. Investment Company Status. Neither the Company nor any
Subsidiary is an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940.
SECTION 3.09. Taxes. The Company and each Subsidiary has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) any Taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all underfunded Plans, other than the portion of the
underfunding of any Plan described in Section 4063 of ERISA that is attributable
to contributing sponsors under such Plan that are not under common control with
the Company or any Subsidiary (based on an allocation of such liability
consistent with the procedures set forth in Section 4063(b) of ERISA) (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements of the
Company reflecting such amounts, exceed by more than $50,000,000 the fair market
value of the assets of all such underfunded Plans. The Company and each
Subsidiary has complied in all material respects with all applicable laws and
regulations relating to employee benefit plans.
SECTION 3.11. Disclosure. None of the reports, financial statements,
certificates or other written information furnished by or on behalf of any Loan
Party to any Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the foregoing shall be limited to a representation and warranty
that such information was prepared in good faith, subject to the express
qualifications set forth in such projections, based upon assumptions believed by
it to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name and
jurisdiction of organization of, and the ownership of the Company and each other
Subsidiary in, each Subsidiary, identifying each such Subsidiary that is a Loan
Party, in each case as of the Effective Date.
SECTION 3.13. Solvency. After the consummation of the Refinancings
and the related Borrowings hereunder, (a) the fair value of the assets of each
Loan Party will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present
57
fair saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be conducted
following the Closing Date.
SECTION 3.14. Federal Reserve Regulations. No part of the proceeds
of any Loan or any Letter of Credit will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry Margin Stock (as defined in Regulation U) (other than shares of the
Company's common stock, to the extent permitted under Section 6.05), or to
refinance Indebtedness originally incurred for such purpose, or for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X. Not more than 25% of the
assets subject to the restrictions of Sections 2.10(c) (to the extent applicable
to Prepayment Events referred to in clause (a) of the definition of such term),
6.02 and 6.03 will at any time consist of Margin Stock (as defined in
Regulations U and X of the Board).
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received,
with a counterpart or copy for each Lender, from each party hereto either
(i) a counterpart of this Agreement signed on behalf of each such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that each such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received, with a counterpart
or copy for each Lender, such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
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(c) The Administrative Agent shall have received, with a counterpart
or copy for each Lender, a certificate, dated the Effective Date, of a
responsible officer of the Company confirming as of the Effective Date (i)
the accuracy of all representations and warranties in the Loan Documents
and (ii) that there exists no Default, in each such case after giving
effect to the Refinancings and the other Transactions that are to occur on
the Effective Date.
(d) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by any Loan Party hereunder or
under any other Loan Document.
(e) The Guarantee Requirement shall be satisfied.
(f) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the London Agent, the
Issuing Banks and the Lenders and dated the Effective Date) of each of (i)
Cleary, Gottlieb, Steen & Hamilton, counsel for the Loan Parties,
substantially in the form of Exhibit G-1, (ii) Charles J. Silva Jr.,
General Counsel of the Company, substantially in the form of Exhibit G-2,
and (iii) such special and local counsel as may be required by the
Administrative Agent, in each case covering such matters relating to the
Loan Parties, the Loan Documents or the Transactions as the Administrative
Agent shall reasonably request.
(g) (i) The Commitments under and as defined in the Existing Credit
Agreement shall have been or shall simultaneously be terminated, all
amounts outstanding thereunder shall have been or shall simultaneously be
paid in full and any Liens securing the obligations thereunder or under
any related agreements shall have been or shall simultaneously be released
and (ii) the Administrative Agent shall have received evidence
satisfactory in form and substance to it demonstrating such termination,
payment and release.
SECTION 4.02. Conditions to All Extensions of Credit. The obligation
of each Lender to make a Loan on the occasion of any Borrowing, and of each
Issuing Bank to issue, amend, renew or extend any Letter of Credit, is subject
to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents (except, in the case of any Revolving Borrowing that
does not result in an increase in the Aggregate Revolving Credit Exposure,
the representations and warranties set forth in Sections 3.04(b) and 3.06)
shall be true and correct on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
59
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Company and each Borrowing Subsidiary on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.
The obligation of each Lender to make a Loan on the occasion of any Borrowing by
any Borrowing Subsidiary is subject to the satisfaction of the following
conditions:
(a) The Administrative Agent (or its counsel) shall have received
such Borrowing Subsidiary's Borrowing Subsidiary Agreement duly executed
by all parties thereto.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Borrowing Subsidiary covering such matters
relating to such Borrowing Subsidiary or its Borrowing Subsidiary
Agreement, and to any related Obligations of Foreign Subsidiaries as
Guarantors, as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received (i) all
documentation and other information related to such Borrowing Subsidiary
reasonably required by the Administrative Agent and each Lender under
applicable "know your customer" or similar rules and regulations,
including the USA Patriot Act, and (ii) such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of such Borrowing
Subsidiary, the authorization of the Transactions insofar as they relate
to such Borrowing Subsidiary and any other legal matters relating to such
Borrowing Subsidiary, its Borrowing Subsidiary Agreement or such
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
ARTICLE V.
Affirmative Covenants
Until the Commitments shall have expired or shall have been
terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall have
expired or shall have been terminated and all LC Disbursements shall have been
reimbursed, the Company and each Borrowing Subsidiary covenants and agrees with
the Lenders (but, in the case of each Borrowing Subsidiary, only as to such
Borrowing Subsidiary and its subsidiaries) that:
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SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent, with copies for each Lender:
(a) no later than the earlier of (i) 10 days after the date that the
Company is required to file a report on Form 10-K with the Securities and
Exchange Commission in compliance with the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(whether or not the Company is so subject to such reporting requirements),
and (ii) 90 days after the end of each fiscal year of the Company, its
audited consolidated balance sheet and related statements of income,
retained earnings and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Company and its Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP;
(b) no later than the earlier of (i) 10 days after the date that the
Company is required to file a report on Form 10-Q with the Securities and
Exchange Commission in compliance with the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(whether or not the Company is so subject to such reporting requirements),
and (ii) 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, its consolidated balance sheet and
related statements of income, retained earnings and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.08 and 6.09 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the Company's audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
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(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) not later than the last day of the second month of each fiscal
year of the Company, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements
of projected operations and cash flow as of the end of and for such fiscal
year), consistent in form and substance with the budgets heretofore
prepared by the Company and furnished to the Administrative Agent and,
promptly when available, any significant revisions to such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Company to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02. Notices of Material Events. If, to the knowledge of
any Financial Officer or other executive officer of the Company, any of the
following events has occurred:
(a) any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in
liability of the Company or its Subsidiaries in an aggregate amount
exceeding $10,000,000; or
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect;
then the Company will furnish to the Administrative Agent and each Lender prompt
written notice of such occurrence. Each notice delivered under this Section
shall be accompanied by a statement of a Financial Officer or other executive
officer of the
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Company setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and tradenames material to the conduct of the business of
the Company and the Subsidiaries, taken as a whole; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation, dissolution or other
transaction permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and will
cause each of the Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings and the Company or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP or (b) failure to pay could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.05. Maintenance of Properties. The Company will, and will
cause each of the Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted; except for such cases of non-compliance that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.06. Insurance. The Company will, and will cause each of
the Subsidiaries to, maintain, with financially sound and reputable insurance
companies, insurance against such risks (and with such risk retentions) as shall
be customary for companies of established reputation engaged in the same or
similar businesses, and will furnish, and cause each of the Subsidiaries to
furnish, to the Lenders, at the request of the Administrative Agent, information
in reasonable detail as to the insurance carried by it.
SECTION 5.07. Books and Records; Inspection Rights. The Company
will, and will cause each of the Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Company will, and
will cause each of the Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested; provided that nothing in this Section shall require any
Loan Party to disclose any confidential or proprietary information constituting
trade secrets.
SECTION 5.08. Compliance with Laws. The Company will, and will cause
each of the Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority (including Environmental Laws and ERISA and the
rules and regulations thereunder) applicable to it, its operations or its
property, except where
63
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.09. Use of Proceeds and Letters of Credit. Each Borrower
will use the proceeds of the Loans and the Letters of Credit only for the
purposes set forth in the preamble to this Agreement.
SECTION 5.10. Further Assurances. The Company will, and will cause
each of the Subsidiaries to, execute any and all further documents, agreements
and instruments, and take all further action that may be required under
applicable law, or that the Required Lenders or the Administrative Agent may
reasonably request, in order that the Guarantee Requirement shall be satisfied
at all times.
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or shall have been
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit shall have expired or
shall have been terminated and all LC Disbursements shall have been reimbursed,
the Company and each Borrowing Subsidiary covenants and agrees with the Lenders
(but, in the case of each Borrowing Subsidiary, only as to such Borrowing
Subsidiary and its subsidiaries) that:
SECTION 6.01. Subsidiary Debt. The sum of (a) the total Indebtedness
of all Consolidated Subsidiaries (excluding (i) Indebtedness under this
Agreement, (ii) Indebtedness existing on the date hereof and set forth on
Schedule 6.01, (iii) Indebtedness owed to the Company or to a Subsidiary, (iv)
reimbursement obligations in respect of undrawn letters of credit incurred in
the ordinary course of business and (v) Indebtedness of any Subsidiary
Guarantor) plus (b) the consideration (other than any note of a Subsidiary that
serves as a conduit in a sale or financing transaction with respect to
Receivables) directly or indirectly received by any Consolidated Subsidiary from
any Person (other than the Company or a Consolidated Subsidiary) for Receivables
sold, which Receivables remain uncollected at such time, will at no time exceed
$100,000,000.
SECTION 6.02. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, incur, assume or suffer to exist any Lien
on any asset now owned or hereafter acquired by it, except:
(a) any Lien created under the Loan Documents;
(b) Liens existing on the date hereof securing Indebtedness
outstanding on the date hereof and set forth on Schedule 6.02;
64
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 180 days after the acquisition thereof;
(d) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary, provided that (i) such
Lien is not created in contemplation of or in connection with such
corporation becoming a Consolidated Subsidiary, (ii) such Lien shall not
apply to any other property or assets of the Company or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on
the date such corporation becomes a Consolidated Subsidiary and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(e) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or any
Consolidated Subsidiary and not created in contemplation of such event;
provided that such Lien shall not extend to other properties or assets of
the Company or any Subsidiary and shall secure only those obligations
which it secures on the date of such merger or consolidation and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(f) any Lien existing on any asset prior to the acquisition thereof
by the Company or any Consolidated Subsidiary and not created in
contemplation of such acquisition;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section; provided that such Indebtedness is not
increased and is not secured by any additional assets;
(h) Liens for taxes that are not yet subject to penalties for
non-payment or are being contested in good faith, or minor survey
exceptions or minor encumbrances, easements or other rights of others with
respect to, or zoning or other governmental restrictions as to the use of,
real property that do not, in the aggregate, materially impair the use of
such property in the operation of the businesses of the Company and the
Subsidiaries;
(i) Liens arising out of judgments or awards against the Company or
any Subsidiary with respect to which the Company or such Subsidiary is, in
good faith, prosecuting an appeal or proceedings for review and (ii) Liens
incurred by the Company or any Subsidiary for the purpose of obtaining a
stay or discharge in any legal proceeding to which the Company or any
Subsidiary is a party; provided that the Liens permitted by the foregoing
clause (ii) shall not secure obligations in an aggregate principal amount
outstanding in excess of 5% of Consolidated Tangible Net Worth;
65
(j) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary course
of business for sums which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate
proceedings, (ii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation
and deposits securing liability to insurance carriers under insurance or
self-insurance arrangements, and (iii) deposits to secure the performance
of bids, trade contracts (other than for Indebtedness), leases (other than
Capital Lease Obligations), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(k) Liens that may be deemed to be created by the subordination in
right of payment of any obligations owed to the Borrower or any Subsidiary
to other obligations of the Borrower or such Subsidiary, as the case may
be; and
(l) Liens not otherwise permitted by the foregoing clauses of this
Section securing Indebtedness in an aggregate principal amount outstanding
not to exceed 5% of Consolidated Tangible Net Worth.
SECTION 6.03. Consolidations, Mergers and Sales of Assets. The
Company will not, and will not permit any of the Subsidiaries to, consolidate or
merge with, or sell, lease or otherwise dispose of any of its assets to, or, in
the case of a Subsidiary, issue or sell any Equity Interests in such Subsidiary
to, any Person (other than the Company or a Subsidiary), except that, so long as
no Default would result under any other provision of this Agreement:
(a) any Person may merge with and into the Company or any Subsidiary
Guarantor; provided that the Company or such Subsidiary Guarantor, as the
case may be, is the surviving Person;
(b) any Person other than the Company or a Subsidiary Guarantor may
merge with and into any Subsidiary that is not a Subsidiary Guarantor;
provided that such Subsidiary is the surviving Person;
(c) subject to Section 6.07, the Company or any Subsidiary may sell,
lease or otherwise dispose of any of its assets to the Company or any
other Subsidiary;
(d) the Company or any Subsidiary may sell, lease or otherwise
dispose of any of its inventory in the ordinary course of business and any
of its assets which are obsolete, excess or unserviceable;
(e) any Foreign Subsidiary may sell Receivables in one or more
transactions in the ordinary course of business and consistent with past
practice, the proceeds of which transactions are used for working capital;
(f) the Company and the Subsidiaries may carry out sale and
leaseback transactions permitted under Section 6.06;
66
(g) the Company or any Subsidiary may sell or otherwise dispose of
Equity Interests in any Subsidiary, and any Subsidiary may issue and sell
its Equity Interests, to one or more Persons other than the Company and
the Subsidiaries in an aggregate amount for all such transactions that
will not result in Subsidiaries in which Persons other than the Company
and the Subsidiaries hold minority interests representing more than 7.5%
of Consolidated Tangible Net Worth; and
(h) the Company or any Subsidiary may sell, lease or otherwise
dispose of any of its assets for fair value (other than as permitted by
clauses (a) through (g) above); provided that (i) no such transaction,
when taken together with all previous such transactions, shall result in
all or substantially all of the assets of the Company and the Subsidiaries
having been sold or otherwise disposed of, (ii) no such transaction shall
result in a reduction in the percentage of the Equity Interests of any
Subsidiary owned directly or indirectly by the Company unless all the
Equity Interests in such Subsidiary owned directly or indirectly by the
Company are disposed of and (iii) the Net Proceeds from any such
transaction shall be used to prepay Loans to the extent required under and
in accordance with Section 2.10(c).
SECTION 6.04. Transactions with Affiliates. The Company will not,
and will not permit any of the Subsidiaries to, directly or indirectly, pay any
funds to or for the account of, make any investment in or engage in any
transaction with any Affiliate (other than the Company or a Subsidiary none of
the Equity Interests in which are owned directly or indirectly by an Affiliate
of the Company that is not a Subsidiary), except that:
(a) the Company may declare and pay any dividend permitted by
Section 6.05;
(b) the Company or any Subsidiary may make payments or provide
compensation, and reimburse related expenses, for services rendered by (i)
any Affiliate who is an officer, director or employee of the Company or
any Subsidiary and (ii) J. Spencer Standish;
(c) the Company or any Subsidiary may make any investment permitted
by Section 6.07;
(d) the Company or any Subsidiary (i) may make sales to or purchases
from any Affiliate and, in connection therewith, extend credit, may make
payments or provide compensation for services rendered by any Affiliate,
and may engage in any other transaction with any Affiliate, in each case
in the ordinary course of business and consistent with past practice and
(ii) may repurchase common stock of the Company from any Affiliate;
provided that any such transaction with an Affiliate pursuant to clause
(i) or (ii) is on terms and conditions at least as favorable to the
Company or such Subsidiary as the terms and conditions that would apply
(1) in an arm's length transaction with a Person not an Affiliate or (2)
in the case of a transaction relating to pension, deferred
67
compensation, insurance or other benefit plans with an Affiliate employee,
in a similar transaction with a non-Affiliate employee; and
(e) the Company or any Subsidiary may engage in transactions with
the entities listed on Schedule 6.04 to the extent consistent with past
practice.
SECTION 6.05. Restricted Payments. The Company will not declare or
make any Restricted Payment unless, immediately after giving effect to such
Restricted Payment, (a) the Leverage Ratio does not exceed 2.50 to 1.00 and (b)
no Default shall have occurred and be continuing.
SECTION 6.06. Limitations on Sale-Leasebacks. The Company will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, with any Person whereby the Company or such Subsidiary
shall sell or transfer property, whether now owned or hereafter acquired, and
then or thereafter rent or lease as lessee such property or any part thereof or
any other property which the Company or any Subsidiary intends to use for
substantially the same purpose or purposes as the property being sold or
transferred, unless (a) such transaction is effected within 180 days of the
property being placed in service by the Company or such Subsidiary and results
in a lease obligation incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such property, (b) the Net Proceeds from any
such transaction are used to prepay Loans under and in accordance with Section
2.10(c) or (c) after giving effect to any such sale or transfer, the aggregate
fair market value of all property of the Company and its Subsidiaries so sold or
transferred after the date hereof, and not permitted under clauses (a) or (b)
above, does not exceed $75,000,000.
SECTION 6.07. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of the Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Subsidiary prior to such merger) any Equity Interests, evidences
of Indebtedness or other securities (other than any Hedging Agreement entered
into in the ordinary course of business) of, make or permit to exist any loans
or advances (excluding accounts receivable arising out of the sale of goods and
services reflected on the Company's consolidated balance sheet as current
assets) to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) (i) investments existing on the date hereof in the capital stock
of Subsidiaries or in Indebtedness of Subsidiaries and (ii) other
investments existing on the date hereof and set forth on Schedule 6.07;
(c) acquisitions of assets of or Equity Interests in other Persons
for consideration consisting solely of common stock of the Company;
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(d) acquisitions of assets of or Equity Interests in other Persons
if, at the time of and after giving pro forma effect to each such
acquisition and any related incurrences of Indebtedness, the Leverage
Ratio does not exceed 3.00 to 1.00;
(e) (i) any investment, loan or advance by a Loan Party in or to
another Loan Party, (ii) any investment, loan or advance by a Subsidiary
that is not a Loan Party in or to a Loan Party; (iii) any investment, loan
or advance by any Subsidiary that is not a Loan Party to any other
Subsidiary that is not a Loan Party, (iv) any investment, loan or advance
by any Loan Party to any Subsidiary that is not a Loan Party; provided
that each investment, loan or advance referred to in the preceding clause
(iv) must be in an outstanding principal amount which, together with the
aggregate outstanding principal amount of all other investments, loans and
advances permitted by such clause (iv), shall not exceed $100,000,000 at
any time and (v) any investment, loan or advance by any Loan Party to any
Subsidiary that is not a Loan Party and the business operations of which
are in China, Korea or Brazil; provided that each investment, loan or
advance referred to in the preceding clause (v) must be in an outstanding
principal amount which, together with the aggregate outstanding principal
amount of all other investments, loans and advances permitted by such
clause (v), shall not exceed $150,000,000 at any time;
(f) Guarantees by a Subsidiary constituting Indebtedness permitted
by Section 6.01 (provided that a Subsidiary shall not Guarantee any
obligation of the Company unless such Subsidiary also has Guaranteed the
Obligations of the Company hereunder) and Guarantees by the Company of
Indebtedness of a Subsidiary permitted by Section 6.01;
(g) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(h) loans or other advances to employees consistent with past
practice; and
(i) other investments not permitted under clauses (a) through (h)
above in an aggregate amount not exceeding $75,000,000 at any time.
SECTION 6.08. Leverage Ratio. The Company will not permit the
Leverage Ratio on any date to exceed 3.50 to 1.00.
SECTION 6.09. Interest Coverage Ratio. The Company will not permit
the ratio of (i) Consolidated EBITDA for any period of four consecutive fiscal
quarters to (ii) Consolidated Interest Expense during such four fiscal quarter
period to be less than 3.00 to 1.00.
SECTION 6.10. Lines of Business. The Company will not, and will not
permit any of the Subsidiaries to, engage at any time in any business or
business activity other than a business conducted by the Company and its
Subsidiaries on the date hereof and business activities reasonably related
thereto.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made or deemed made;
(d) the Company or any Subsidiary shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the existence of any Borrower) or 5.09 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Company (which notice will be given
at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
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(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company
or any Material Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Material Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Company or any Material Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other unsatisfied
liabilities in connection with ERISA Events that have occurred, could
reasonably be expected to result in liability of the Company and the
Subsidiaries in an aggregate amount exceeding (i) $10,000,000 in any year
or (ii) $25,000,000 in the aggregate;
(m) any guarantee of any Guarantor hereunder or under the Subsidiary
Guarantee Agreement shall cease to be, or shall be asserted by any Loan
Party not to be, a legal, valid and binding obligation of such Guarantor;
or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of
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such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Company and any other Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect to the Company described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrowers.
ARTICLE VIII
The Agents
In order to expedite the transactions contemplated by this
Agreement, JPMCB is hereby appointed to act as Administrative Agent, and JPMEL
is hereby appointed to act as London Agent, on behalf of the Lenders and each
Issuing Bank. Each of the Lenders, each assignee of any such Lender and each
Issuing Bank hereby irrevocably authorizes the Agents to take such actions on
behalf of such Lender or assignee or such Issuing Bank and to exercise such
powers as are delegated to the Agents by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent and, to the extent expressly provided herein, the London
Agent are hereby expressly authorized by the Lenders and each Issuing Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Banks all payments of principal of and interest on the
Loans, all payments in respect of LC Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Company of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Company or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, if all applicable mandatory prepayments under
Section 2.10(c) shall have been made or arrangements therefor satisfactory to
the Administrative Agent shall have been entered into, the Administrative Agent
is hereby expressly authorized to release any Guarantor from its obligations
hereunder and under the other Loan Documents, in the event that all the capital
stock of such Guarantor shall
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be sold, transferred or otherwise disposed of to a Person that is not an
Affiliate of the Company in a transaction permitted by Section 6.03.
With respect to any Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Agent is required to exercise upon
receipt of notice in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose, and no Agent shall be
liable for the failure to disclose, any information relating to the Company or
any of its Subsidiaries that is communicated to or obtained by the institution
serving as Agent or any of its Affiliates in any capacity. No Agent shall be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02) or in the absence of its own gross negligence or wilful misconduct. No
Agent shall be deemed to have knowledge of any Default unless and until written
notice thereof is given to such Agent by the Company or a Lender, and no Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
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Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the revolving credit facility provided for herein as well as activities as
Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Banks and the Company. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Company, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After the
Agent's resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Guarantee
In order to induce the Lenders to make Loans hereunder and the
Issuing Banks to issue the Letters of Credit, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the
due and punctual payment and performance of the Obligations. The Company further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its Guarantee hereunder
74
notwithstanding any such extension or renewal of any Obligation. Each and every
default in payment of the principal of and premium, if any, or interest on any
Obligation shall give rise to a separate cause of action hereunder, and separate
suits may be brought hereunder as each cause of action arises. The Company
waives presentment to, demand of payment from and protest to any Borrowing
Subsidiary or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever, by
reason of the invalidity, illegality or unenforceability of the Obligations, any
impossibility in the performance of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of the Company
hereunder shall not be affected by (a) the failure of any Lender, any Issuing
Bank, any Agent or any other Person to whom any of the Obligations are or shall
be owed (collectively, the "Guarantee Beneficiaries") to assert any claim or
demand or to enforce or exercise any right or remedy under the provisions of
this Agreement, any other Loan Document or otherwise, (b) any extension or
renewal of any of the Obligations, (c) any rescission, waiver, amendment or
modification of, or release from any of the terms or provisions of, this
Agreement, any Borrowing Subsidiary Agreement, any other Loan Document or any
other agreement, (d) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations or (e) any other act, omission or delay to do any
other act which may or might in any manner or to any extent vary the risk of the
Company or otherwise operate as a discharge of the Company as a matter of law or
equity (other than the indefeasible payment in full in cash of the Obligations)
or which would impair or eliminate any right of the Company to subrogation.
The Company further agrees that its guarantee hereunder constitutes
a guarantee of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Obligations
or operated as a discharge thereof) and not merely of collection, and waives any
right to require that any resort be had by any Guarantee Beneficiary to any
balance of any deposit account or credit on the books of any Guarantee
Beneficiary in favor of any Borrower, any other Loan Party or any other Person.
To the fullest extent permitted by applicable law, the Company
waives any defense based on or arising out of any defense of any Borrower or any
other Loan Party or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of any Borrower
or any other Loan Party, other than the indefeasible payment in full in cash of
all the Obligations. The Guarantee Beneficiaries may, at their election,
compromise or adjust any part of the Obligations, make any other accommodation
with any Borrower or any other Loan Party or exercise any other right or remedy
available to them against any Borrower or any other Loan Party, without
affecting or impairing in any way the liability of the Company hereunder
75
except to the extent the Obligations have been fully and indefeasibly paid in
cash. To the fullest extent permitted by applicable law, the Company waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of the Company against any
Borrower or any other Loan Party, as the case may be.
The Company further agrees that its guarantee hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Guarantee Beneficiary upon the bankruptcy or reorganization
of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other
right that any Guarantee Beneficiary may have at law or in equity against the
Company by virtue hereof, upon the failure of any Borrowing Subsidiary or any
other Loan Party to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise,
the Company hereby promises to and will, upon receipt of written demand by any
Agent, forthwith pay, or cause to be paid, to the Applicable Agent for
distribution to the applicable Guarantee Beneficiaries in cash an amount equal
to the sum of (i) the unpaid principal amount of such Obligations then due, (ii)
accrued and unpaid interest and fees on such Obligations and (iii) all other
monetary Obligations then due. The Company further agrees that if payment in
respect of any Obligation shall be due in a currency other than US Dollars
and/or at a place of payment other than New York and if, by reason of any Change
in Law, disruption of currency or foreign exchange markets, war or civil
disturbance or similar event, payment of such Obligation in such currency or at
such place of payment shall be impossible or, in the judgment of any Guarantee
Beneficiary, not consistent with the protection of its rights or interests,
then, at the election of such Guarantee Beneficiary, the Company shall make
payment of such Obligation in US Dollars (based upon the applicable Exchange
Rate in effect on the date of payment) and/or in New York, and shall indemnify
such Guarantee Beneficiary against any losses or expenses that it shall sustain
as a result of such alternative payment.
Upon payment in full by the Company of any Obligation, each Lender
shall, in a reasonable manner, assign to the Company the amount of such
Obligation owed to it and so paid, such assignment to be pro tanto to the extent
to which the Obligation in question was discharged by the Company, or make such
disposition thereof as the Company shall direct (all without recourse to any
Guarantee Beneficiary and without any representation or warranty by any
Guarantee Beneficiary).
Upon payment by the Company of any sums to the Applicable Agent as
provided above, all rights of Company against any Borrowing Subsidiary or any
other Loan Party arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment
to the prior indefeasible payment in full in cash of all the Obligations owed by
such Borrowing Subsidiary or such other Loan Party to the Guarantee
Beneficiaries.
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Nothing shall discharge or satisfy the liability of the Company
hereunder except the full performance and payment of the Obligations.
Each reference herein to any Guarantee Beneficiary shall be deemed
to include their or its successors and assigns, in whose favor the provisions of
this Guarantee shall also inure.
ARTICLE X.
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company or any Borrowing Subsidiary, to it, or to it
in care of the Company, as the case may be, at 1373 Broadway, Albany, New
York 12204, Attention of David C. Michaels, Treasurer (Facsimile No. (518)
447-6305);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Deal Management Team, Loan and Agency Services Group, 1111 Fannin Street,
10th Floor, Houston, Texas 77002, Attention of Denise Ramon (Facsimile No.
(713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 12 Corporate
Woods Boulevard, 4th Floor, Albany, New York 12211, Attention of James E.
Murphy (Facsimile No. (518) 436-9811);
(c) if to the London Agent, to J.P. Morgan Europe Limited, 125
London Wall, 9th Floor, London, England EC2Y5AJ, Attention of Sue Dalton
(Facsimile No. 011-44-207-777-2360), with a copy to the Administrative
Agent as provided in paragraph (b) above;
(d) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., Deal
Management Team, Loan and Agency Services Group, 1111 Fannin Street, 10th
Floor, Houston, Texas 77002, Attention of Denise Ramon (Facsimile No.
(713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 12 Corporate
Woods Boulevard, 4th Floor, Albany, New York 12211, Attention of James E.
Murphy (Facsimile No. (518) 436-9811);
(e) if to JPMCB as Issuing Bank, to JPMorgan Chase Bank, N.A., Deal
Management Team, Loan and Agencys Services Group,, 1111 Fannin Street,
10th Floor, Houston, Texas 77002, Attention of Denise Ramon (Facsimile No.
(713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 12 Corporate
Woods Boulevard, 4th Floor, Albany, New York 12211, Attention of James E.
Murphy (Facsimile No. (518) 436-9811); and
77
(f) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by any
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Banks and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether
any Agent, any Lender or any Issuing Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any other Loan Document (other than
any Alternate Currency Supplement) nor any provision hereof or thereof may be
waived, amended or modified except, in the case of this Agreement, pursuant to
an agreement or agreements in writing entered into by the Company and the
Required Lenders or, in the case of any other Loan Document (other than any
Alternate Currency Supplement), pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall (i) increase any Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the date of any scheduled payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.18(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender affected thereby, (v) change
any of the provisions of this Section or the definition of "Required Lenders" or
any other provision of any Loan Document specifying the number or percentage of
Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender, (vi) release (A) the Company from its obligations as a
78
Guarantor hereunder or (B) all or substantially all the other Guarantors from
their obligations under the Subsidiary Guarantee Agreement without the written
consent of each Lender, or (vii) subordinate the Obligations to any other
Indebtedness without the consent of each affected Lender; provided further that
(A) no such agreement shall amend, modify or otherwise affect the rights or
duties of any Agent, any Issuing Bank, any Fronting Lender or the Swingline
Lender without the prior written consent of such Agent, such Issuing Bank, such
Fronting Lender or the Swingline Lender, as the case may be. No Alternate
Currency Supplement nor any provision thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by each of
the parties thereto.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the Arranger,
the Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Arranger and the Agents, in connection with the
syndication of the revolving credit facility provided for herein, the
preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by any Agent, any Issuing Bank or any Lender, including the
fees, charges and disbursements of counsel for any Agent, any Issuing Bank or
any Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Company shall indemnify the Arranger, each Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby or thereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing (each a
"Proceeding"), regardless of whether any Indemnitee is a party to a Proceeding,
whether a Proceeding is brought by a third party or by a Borrower or any of its
Affiliates or
79
whether a Proceeding is based on contract, tort or any other theory; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee or a Related Party of such Indemnitee.
(c) Each Revolving Lender severally agrees to the extent that the
Company fails to pay any amount required to be paid by it to any Agent, any
Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section,
to pay to such Agent, such Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against such Agent or Issuing Bank or the Swingline Lender in its
capacity as such.
(d) To the extent permitted by applicable law, the Company shall
not, and shall not permit its Subsidiaries to, assert, and hereby waives, any
claim against any Indemnitee on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that (i)
a Borrower and a Guarantor may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any such attempted assignment or transfer by a Borrower or a Guarantor
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing
Banks and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) of
this Section, any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the
80
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:
(A) the Company; provided that no consent of the Company
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent and each Issuing Bank,
provided that no consent of the Administrative Agent shall be
required for an assignment of any Commitment to an assignee that is
a Lender with a Commitment immediately prior to giving effect to
such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitment or
Loans of any Class, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Company and the
Administrative Agent otherwise consents; provided that no such
consent of the Company shall be required if an Event of Default
under clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire
in which the assignee designates one or more credit contacts to whom
all syndicate-level information (which may contain material
non-public information about the Borrowers, the Loan Parties and
their Related Parties or the Company's securities) will be made
available and who may receive such information in accordance with
the assignee's compliance procedures and applicable laws, including
Federal and state securities laws.
For the purpose of this Section 10.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions
81
of credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(iii)Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.17 and 10.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this Section shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Agents, the Issuing Banks and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by any
Borrower, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of any Borrower, any
Agent, any Issuing Bank or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for
82
the performance of such obligations and (C) the Borrowers, the Agents, the
Issuing Banks and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, each Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the applicable Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the applicable
Borrower, to comply with Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that any Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of
83
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile or other electronic means
shall be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Borrower against any of and all the obligations of the Borrowers at the time
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including any other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or
84
proceeding arising out of or relating to any Loan Document, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that any Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against any Borrower or its properties in the courts
of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. (a) Each Agent, Issuing Bank and
Lender agrees to maintain the confidentiality of the Information (as defined
below),
85
except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (vi) subject to
an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (vii)
with the consent of the Company or (viii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Company. For the purposes of
this Section, "Information" means all information received from the Company
relating to the Company or its business, other than any such information that is
available to any Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
(b) Each Lender acknowledges that Information furnished to it
pursuant to this Agreement may include material non-public information
concerning the Borrowers and their Related Parties or the Company's securities,
and confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public
information in accordance with those procedures and applicable law, including
Federal and state securities laws.
(c) All information, including requests for waivers and amendments,
furnished by the Borrowers or the Administrative Agent pursuant to, or in the
course of administering, this Agreement will be syndicate-level information,
which may contain material non-public information about the Borrowers, the Loan
Parties and their Related Parties or the Company's securities. Accordingly, each
Lender represents to the Borrower and the Administrative Agent that it has
identified in its Administrative Questionnaire a credit contact who may receive
information that may contain material non-public information in accordance with
its compliance procedures and applicable law, including Federal and state
securities laws.
SECTION 10.13. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be
86
purchased with such other currency on the Business Day immediately preceding the
day on which final judgment is given.
(b) The obligations of each party hereto in respect of any sum due
to any other party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such party agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the parties contained in this
Section shall survive the termination of this Agreement and the payment of all
other amounts owing hereunder.
SECTION 10.14. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 10.15. U.S.A. PATRIOT Act. Each Lender and each Issuing Bank
hereby notifies the Borrowers that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of the
Borrowers and other information that will allow such Lender or Issuing Bank, as
the case may be, to identify the Borrowers in accordance with the Act.
SECTION 10.16. No Fiduciary Relationship. The Company, on behalf of
itself and the Subsidiaries, agrees that in connection with all aspects of the
transactions contemplated hereby and any communications in connection therewith,
the Borrower, the Subsidiaries and their Affiliates, on the one hand, and the
Administrative Agent, the Lenders, the Issuing Banks and their Affiliates, on
the other hand, will have a business relationship that does not create, by
implication or otherwise, any fiduciary duty on the part of the Administrative
Agent, the Lenders, the Issuing Banks or their Affiliates, and
87
no such duty will be deemed to have arisen in connection with any such
transactions or communications.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ALBANY INTERNATIONAL CORP.,
by
/s/ Michael C. Nahl
------------------------------------
Name: Michael C. Nahl
Title: Executive VP and CFO
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, a Lender, the
Swingline Lender and an Issuing Bank,
by
/s/ Dean J. Burns
------------------------------------
Name: Dean J. Burns
Title: Vice President
J.P. MORGAN EUROPE LIMITED,
as London Agent,
by
/s/ Lesley Pluck
------------------------------------
Name: Lesley Pluck
Title: Officer
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Bank of America, N.A.
- ------------------------------------------------------
by
/s/ Christopher S. Allen
---------------------------------------------
Name: Christopher S. Allen
Title: Senior Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Wachovia Bank N.A.
- ------------------------------------------------------
by
/s/ Richard J. Klouda
---------------------------------------------
Name: Richard J. Klouda
Title: Senior Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Sumitomo Mitsui Banking Corporation
- ------------------------------------------------------
by
/s/ Shigeru Tsuru
---------------------------------------------
Name: Shigeru Tsuru
Title: Joint General Manager
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Citizens Bank of Massachusetts
- ------------------------------------------------------
by
/s/ Daniel Bernard
---------------------------------------------
Name: Daniel Bernard
Title: Senior Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
HSBC Bank, USA, National Association
- ------------------------------------------------------
by
/s/ Charles R. Kreuter
---------------------------------------------
Name: Charles R. Kreuter
Title: Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Nordea Bank Finland PLC
- ------------------------------------------------------
by
/s/ Herrick M. Steffensen
---------------------------------------------
Name: Herrick M. Steffensen
Title: First Vice President
For any Lender requiring a second signature line:
by
/s/ Gerald E. Chelius, Jr.
---------------------------------------------
Name: Gerald E. Chelius, Jr.
Title: SVP Credit
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Manufacturers and Traders Trust Company
- ------------------------------------------------------
by
/s/ Craig A. Keefer
---------------------------------------------
Name: Craig A. Keefer
Title: Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
TD Banknorth, N.A.
- ------------------------------------------------------
by
/s/ Robert C. Hergrueter
---------------------------------------------
Name: Robert C. Hergrueter
Title: Sr. Vice President
For any Lender requiring a second signature line:
by
N/A
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
First Niagara Bank
- ------------------------------------------------------
by
/s/ Paul D. Ryan
---------------------------------------------
Name: Paul D. Ryan
Title: Vice President
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
Bank of Tokyo-Mitsubishi UFJ Trust Company
- ------------------------------------------------------
by
/s/ J. Profesta
---------------------------------------------
Name: J. Profesta
Title: AVP
For any Lender requiring a second signature line:
by
---------------------------------------------
Name:
Title:
- ------------------------------------------------------
Lender signature page to the
Albany International, Inc. Credit Agreement
Name of Lender,
ABN AMRO Bank N.V.
- ------------------------------------------------------
by
/s/ Thomas T. Rogers
---------------------------------------------
Name: Thomas T. Rogers
Title: Managing Director
For any Lender requiring a second signature line:
by
/s/ Michael A. Kowalczuk
---------------------------------------------
Name: Michael A. Kowalczuk
Title: Vice President
- ------------------------------------------------------
Schedule 1.01
Indebtedness to be Refinanced
-----------------------------
None.
Commitments
-----------
- --------------------------------------------------------------------------------
Lender Commitment
- --------------------------------------------------------------------------------
JPMorgan Chase Bank, N.A. $60,000,000
- --------------------------------------------------------------------------------
Bank of America, N.A. $60,000,000
- --------------------------------------------------------------------------------
Bank of Tokyo Mitsubishi UFJ Trust Company $60,000,000
- --------------------------------------------------------------------------------
Wachovia Bank, N.A. $60,000,000
- --------------------------------------------------------------------------------
Sumitomo Mitsui Banking Corporation $40,000,000
- --------------------------------------------------------------------------------
Citizens Bank of Massachusetts $40,000,000
- --------------------------------------------------------------------------------
ABN AMRO Bank N.V. $24,000,000
- --------------------------------------------------------------------------------
HSBC Bank USA, N.A. $24,000,000
- --------------------------------------------------------------------------------
Nordea Bank Finland PLC $24,000,000
- --------------------------------------------------------------------------------
Manufacturers and Traders Trust Company $24,000,000
- --------------------------------------------------------------------------------
TD Banknorth, N.A. $24,000,000
- --------------------------------------------------------------------------------
First Niagara Bank $20,000,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total $460,000,000
- --------------------------------------------------------------------------------
Schedule 2.05
Existing Letters of Credit
--------------------------
None.
Schedule 3.06
Disclosed Matters
The discussion of various matters set forth in the Company's Annual Report on
Form 10-K for the year ended December 31, 2005 (a) in "Item 1A. Risk Factors"
under the heading "The Company has been named as a defendant in suits relating
to the actual or alleged exposure to asbestos-containing products" and (b) in
"Item 3. Legal Proceedings" is hereby incorporated by reference.
Schedule 3.12
Subsidiaries
------------
Subsidiaries
------------
Loan Country of
Affiliate Direct Subsidiary of Party Incorporation
- ----------------------------------------------------- ----------------------------------------- --------- ---------------
47 Albany Troy Road Corporation - Namesaver Albany International Corp. United States
AI (Switzerland) GmbH Albany International Holding Switzerland
(Switzerland) AG
Albany Door Systems A/S Albany Door Systems GmbH Denmark
Albany Door Systems AB Albany International Holding AB Sweden
Albany Door Systems AG Albany Door Systems AB Switzerland
Albany Door Systems B.V. Albany Door Systems AB Netherlands
Albany Door Systems GmbH Albany International BV Germany
Albany Door Systems GmbH (Austria) Albany Door Systems AB Austria
Albany Door Systems S.A.R.L. Albany Door Systems AB France
Albany Door Systems Sp. z.oo Albany International Corp. Poland
Albany Dritek Corp. - Inactive Albany International Corp. United States
Albany Felt Company - Namesaver Albany International Corp. United States
Albany International (China) Co., Ltd. Albany International Corp. China
Albany International AB Albany International Holding AB Sweden
Albany International Applied Technology (Suzhou) Co., Albany International Holding China
Ltd. (Switzerland) AG
Albany International AS Albany International AB Norway
Albany International Asia Pty. Ltd. Albany International Holdings Two, Inc. Australia
Albany International B.V. Albany International Holding Netherlands
(Switzerland) AG
Albany International Canada Corp. AI (Switzerland) GmbH Canada
Albany International Corp. X United States
Albany International de Mexico S.A. de C.V. Albany International Holding S.A de C.V. Mexico
Albany International France, S.A.S. Albany International Canada Corp. France
Jurisdiction of
Affiliate Incorporation
- ----------------------------------------------------- -----------------------
47 Albany Troy Road Corporation - Namesaver New York
AI (Switzerland) GmbH Switzerland
Albany Door Systems A/S Denmark
Albany Door Systems AB Norrkoping, Sweden
Albany Door Systems AG Zurich, Switzerland
Albany Door Systems B.V. Dieren, Netherlands
Albany Door Systems GmbH Germany
Albany Door Systems GmbH (Austria) Sierning, Austria
Albany Door Systems S.A.R.L. Selestat, France
Albany Door Systems Sp. z.oo Poland
Albany Dritek Corp. - Inactive New York
Albany Felt Company - Namesaver New York
Albany International (China) Co., Ltd. Panyu, Guangdong, China
Albany International AB Halmstad, Sweden
Albany International Applied Technology (Suzhou) Co., Jiangsu, PRC
Ltd. (Switzerland) AG
Albany International AS Oslo, Norway
Albany International Asia Pty. Ltd. Australian Capital
Territory
Albany International B.V. The Hague, Netherlands
Albany International Canada Corp. Nova Scotia
Albany International Corp. Delaware
Albany International de Mexico S.A. de C.V. Mexico
Albany International France, S.A.S. Selestat, France
Loan Country of
Affiliate Direct Subsidiary of Party Incorporation
- ----------------------------------------------------- ----------------------------------------- --------- ---------------
Albany International Germany Holding GmbH Albany International Holdings Two, Inc. Germany
Albany International GmbH Albany International Germany Holding GmbH Germany
Albany International GmbH & Co. KG - Merged Albany International Germany Holding GmbH Germany
Albany International Holding (Switzerland) AG Albany International Holdings Two, Inc. Switzerland
Albany International Holding AB Albany International Holding Sweden
(Switzerland) AG
Albany International Holding S.A. de C.V. Albany International Corp. Mexico
Albany International Holdings Two, Inc. Albany International Corp. X United States
Albany International Italia S.r.l. Albany International Holding Italy
(Switzerland) AG
Albany International Korea, Inc. Albany International Holdings Two, Inc. Korea
Albany International Ltd. Albany International Holding United Kingdom
(Switzerland) AG
Albany International Oy Albany International AB Finland
Albany International Pty. Ltd. Albany International HoldingsTwo, Inc. Australia
Albany International Receivables Corporation Albany International Holdings Two, Inc. Cayman Islands
Albany International Research Co. Albany International Corp. X United States
Albany International S.A. Pty. Ltd. Albany International AB South Africa
Albany International S.p.A. Albany International Italia S.r.l. Italy
Albany International Service Company S.A. de C.V. Albany International Holding S.A. de C.V. Mexico
Albany International Techniweave, Inc. Albany International Corp. X United States
Albany International Tecidos Tecnicos Ltda. Albany International Canada Corp. Brazil
Albany Nordiskafilt Kabushiki Kaisha Albany International AB Japan
Brandon Drying Fabrics, Inc. - Inactive Geschmay Corp. X United States
Jurisdiction of
Affiliate Incorporation
- ----------------------------------------------------- -----------------------
Albany International Germany Holding GmbH Germany
Albany International GmbH Germany
Albany International GmbH & Co. KG - Merged Germany
Albany International Holding (Switzerland) AG Switzerland
Albany International Holding AB Sweden
Albany International Holding S.A. de C.V. Mexico
Albany International Holdings Two, Inc. Delaware
Albany International Italia S.r.l. Italy
Albany International Korea, Inc. Chungju-shi, Korea
Albany International Ltd. United Kingdom
Albany International Oy Helsinki, Finland
Albany International Pty. Ltd. Australian Capital
Territory
Albany International Receivables Corporation Cayman Islands
Albany International Research Co. Delaware
Albany International S.A. Pty. Ltd. Durban
Albany International S.p.A. Italy
Albany International Service Company S.A. de C.V. Mexico
Albany International Techniweave, Inc. New Hampshire
Albany International Tecidos Tecnicos Ltda. Santa Catarina
Albany Nordiskafilt Kabushiki Kaisha Tokyo
Brandon Drying Fabrics, Inc. - Inactive Delaware
Loan Country of
Affiliate Direct Subsidiary of Party Incorporation
- ----------------------------------------------------- ----------------------------------------- --------- ---------------
Foretagshalsan Tre Hjartan AB Albany International AB Sweden
Geschmay Asia Private Limited - Liquidated Albany International Holdings Two, Inc. Singapore
Geschmay Corp. Albany International Corp. X United States
Geschmay Export Corp. - Liquidated Geschmay Corp. Virgin Islands
Geschmay Forming Fabrics Corp. - Inactive Geschmay Corp. X United States
Geschmay Wet Felts, Inc. - Inactive Geschmay Corp. X United States
Loading Bay Specialists Limited Albany Door Systems GmbH United Kingdom
Martel Wire S.A. de C.V. Albany International Holding S.A. de C.V. Mexico
Metco Form Oy - Merged Albany International AB Finland
Nevo-Cloth Ltd. Albany International AB Russia
Portsam AB - Merged Albany Door Systems AB Sweden
SA Alfadoor NV Albany Door Systems AB Belgium
Transamerican Manufacturing Inc. - Namesaver Albany International Corp. United States
Transglobal Enterprises Inc. - Namesaver Albany International Corp. United States
Wurttembergische Filztuchfabrik D. Geschmay GmbH Albany International Germany Holding GmbH Germany
Jurisdiction of
Affiliate Incorporation
- ----------------------------------------------------- -----------------------
Foretagshalsan Tre Hjartan AB Halmstad, Sweden
Geschmay Asia Private Limited - Liquidated Singapore
Geschmay Corp. Delaware
Geschmay Export Corp. - Liquidated Virgin Islands
Geschmay Forming Fabrics Corp. - Inactive Delaware
Geschmay Wet Felts, Inc. - Inactive Delaware
Loading Bay Specialists Limited Cardiff, UK
Martel Wire S.A. de C.V. Mexico
Metco Form Oy - Merged Espoo
Nevo-Cloth Ltd. St. Petersburg
Portsam AB - Merged Sweden
SA Alfadoor NV Belgium
Transamerican Manufacturing Inc. - Namesaver Delaware
Transglobal Enterprises Inc. - Namesaver Delaware
Wurttembergische Filztuchfabrik D. Geschmay GmbH Germany
Schedule 6.01
Existing Subsidiary Indebtedness
--------------------------------
Amount(1)
Wurttembergische Filztuchfabrik D. Geschmay GmbH
Short and Medium-Term Borrowings from Local Banks $ 375,000
Albany Door Systems AB (including Subsidiaries)
Short and Medium-Term Borrowings from Local Banks $ 200,000
Albany Nordiskafilt Kabushiki Kaisha
Short and Medium-Term Borrowings from Local Banks $5,100,000
Albany International Pty. Ltd.
Short and Medium-Term Borrowings from Local Banks $ 311,000
Albany International Canada Corp.
Short and Medium-Term Borrowings from Local Banks $ 669,000
Albany International France S.A.S
Finance Lease of premises in Gond Pontouvre w/Batimap $1,750,000
- ----------
(1) Dollar amounts are converted from local currencies.
Schedule 6.02
Existing Liens
--------------
Wurttembergische Filztuchfabrik D. Geschmay GmbH
Mortgage on real property to secure borrowings disclosed in Schedule 6.01, in an
amount not to exceed Euro 5,113,000.
Albany International Oy
Real property lien to secure bank overdrafts in an amount not to exceed Euro
1,334,000.
Schedule 6.04
Certain Transactions with Affiliates
------------------------------------
Beier Albany & Co.
The Company has a 50% interest in a South African business enterprise in the
Company's core business of paper machine clothing and industrial fabrics. This
enterprise was originally organized in 1978 as a partnership, and is now
conducted through a corporation with 50/50 ownership. The Company's decision to
conduct business in South Africa in this way arose due to the advantages of
having an established local business with experience operating in South Africa.
The Company and its other subsidiaries engage in intercompany sales and other
transactions with Beier Albany to the same extent as they would any wholly-owned
subsidiary. The other 50% interest is owned by an entity owned by members of the
Beier family who, apart from their ownership of this interest, are not, to the
Company's best knowledge, Affiliates of the Company.
Spectra Systems Corporation (SSC)
The Company made an investment of approximately $4 million in 1997 in this
entity, which is engaged in the development of textiles using dispersed laser
technology. At the same time, the Company entered into an exclusive supply
arrangement pursuant to which SSC is obligated to purchase all of its
monofilament or textile products from the Company, and to pay certain royalties
to the Company on sales of SSC products that incorporate materials supplied by
the Company. SSC also granted to the Company an exclusive license to use SSC
products in paper machine clothing and related products. In addition, the
Company's subsidiary, Albany International Research Co., has provided research
and technical support to SSC. The remaining interests of SSC are not, to the
Company's best knowledge, held by Affiliates of the Company. As of December 31,
2005, the Company was no longer engaged in any commercial or other business
activities with SSC. Any future dealings (which are not anticipated) would be at
arm's length.
Nevo Cloth Ltd.
Albany Nordiskafilt AB, the Company's principal Swedish subsidiary, established
a 50/50 equity joint venture with a local Russian partner to gain a
manufacturing presence in Russia in the Company's core paper machine clothing
business. Albany Nordiskafilt supplies paper machine clothing and related
products to this entity for resale to customers in Russia. The other shareholder
is not, to the Company's best knowledge, an Affiliate of the Company.
Loading Bay Specialists Limited
The Company made an investment of approximately $2,025,000 to acquire a 49.9%
interest in a distributor of high-performance industrial doors in England, where
the Company's door products did not have the same level of penetration as in
other European markets. The Company sells high-performance doors and related
products to this entity
2
for resale in the U.K. The other shareholder is not, to the Company's best
knowledge, an Affiliate of the Company.
Albany International Receivables Corp. (AIRC)
During 2001, the Company entered into a program to sell a portion of its North
American accounts receivable to AIRC, with no recourse. The accounts receivable
are sold on an ongoing basis to AIRC, a qualified special purpose entity which,
in accordance with GAAP, is not consolidated in the Company's financial
statements. The agreements pursuant to which receivables are sold have been
filed with the SEC as exhibits to the Company's Exchange Act reports.
Texas Composite, Inc. (TCI)
During 2006, the Company entered into a share purchase agreement with the
shareholders of Texas Composite, Inc., a manufacturer of composite structures
used primarily in aerospace applications, and acquired 45.6% of the outstanding
equity of TCI. At the same time, the Company entered into a shareholders
agreement with the remaining shareholder that gives the Company effective
operating control of TCI. Under the share purchase agreement, the Company will
acquire the remaining outstanding shares from the remaining shareholder no later
than December 31, 2006. The full financial results of TCI will be included in
the Company's consolidated financial statements beginning the first quarter of
2006. The Company interacts with TCI in the same manner as it interacts with any
other wholly-owned subsidiary.
Schedule 6.07
Existing Investments
--------------------
Albany International Corp. and Subsidiaries
- -------------------------------------------
Beier Albany & Co. Ltd. 50% ownership of ordinary shares
Spectra Systems Corporation 1,777,778 shares Series C
(Delaware) Preferred, $0.01 par value (<20%)
Loading Bay Specialists Limited 4,999 ordinary shares
(England and Wales)
Nevo Cloth Ltd. (Russia) 50% equity ownership
Ichikawa Ltd. (Japan) 300,000 shares Common Stock
(approx. 1.0%)
Parco Scientifico Technlogico di Venezia 176 quotas valued at ITL
s.c.a.r.l. 17,600,000 (approx. US$ 9,800)
Albany International Receivables Corp. 100% ownership of equity; loan
from Albany International Canada
Corp. of CAD 5,300,000
Albany International AB(1) Surety Bond, dated May 25, 1994,
by Albany International Corp. for
the benefit of Forsakringsbolaget
Pensionsgaranti, securing the
obligations of Albany
International AB under certain
insurance policies relating to
the pension obligations of Albany
International AB to employees in
Sweden (approximately 168,000,000
Swedish kroner)
Albany International Germany Holding GmbH Guaranty by Albany International
Corp. in favor of Deutsche Bank
of borrowings by Albany
International Germany Holding of
Euro 714,889 (approx. US
$860,000)
Texas Composite, Inc. 45.6% equity ownership
- ----------
(1) Wholly-owned subsidiary of Albany International Corp.
EXHIBIT A-1
Form of Borrowing Subsidiary Agreement
--------------------------------------
BORROWING SUBSIDIARY AGREEMENT (this "Agreement")
dated as of [ ], 200[ ], among ALBANY INTERNATIONAL
CORP., a Delaware corporation (the "Company"), [NAME OF
BORROWING SUBSIDIARY], a [ ] corporation (the "New
Borrowing Subsidiary"), and JPMORGAN CHASE BANK, N.A.,
as Administrative Agent for the Lenders referred to
below.
Reference is hereby made to the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings specified in the Credit
Agreement. Under the Credit Agreement, the Lenders have agreed, upon the terms
and subject to the conditions set forth therein, to make Loans to the Borrowing
Subsidiaries, and the Company and the New Borrowing Subsidiary desire that the
New Borrowing Subsidiary become a Borrowing Subsidiary. The Company represents
that the New Borrowing Subsidiary is a wholly owned Subsidiary. Each of the
Company and the New Borrowing Subsidiary represent and warrant that the
representations and warranties of the Company in the Credit Agreement relating
to the New Borrowing Subsidiary and this Agreement are true and correct on and
as of the date hereof. The Company agrees that the Guarantee of the Company
contained in the Credit Agreement will apply to the Obligations of the New
Borrowing Subsidiary. Upon execution of this Agreement by each of the Company,
the New Borrowing Subsidiary and the Administrative Agent, the New Borrowing
Subsidiary shall be a party to the Credit Agreement and the Indemnity,
Subrogation and Contribution Agreement and shall constitute a "Borrowing
Subsidiary" and a "Borrower" for all purposes thereof, and the New Borrowing
Subsidiary hereby agrees to be bound by all provisions of the Credit Agreement
and the Indemnity, Subrogation and Contribution Agreement.
This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized officers as of the date first appearing
above.
ALBANY INTERNATIONAL CORP.,
by
--------------------------------
Name:
Title:
[NAME OF NEW BORROWING SUBSIDIARY],
by
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
by
--------------------------------
Name:
Title:
EXHIBIT A-2
Form of Borrowing Subsidiary Termination
JPMorgan Chase Bank, N.A.,
as Administrative Agent for the Lenders referred to below
c/o JPMorgan Chase Bank, N.A.
Deal Management Team, Loan and Agency Services Group
1111 Fannin Street, 10th Floor
Houston, Texas 77002
with a copy to:
JPMorgan Chase Bank, N.A.
12 Corporate Woods Boulevard, 4th Floor
Albany, New York 12211
[ ], 200[ ]
Ladies and Gentlemen:
The undersigned, Albany International Corp., a Delaware corporation
(the "Company"), refers to the Five-Year Revolving Credit Facility Agreement
dated as of April 14, 2006, among the Company, the Borrowing Subsidiaries from
time to time party thereto, the Lenders party thereto, JPMorgan Chase Bank,
N.A., as Administrative Agent, and J.P. Morgan Europe Limited, as London Agent
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"). Capitalized terms used and not otherwise defined
herein have the meanings specified in the Credit Agreement.
The Company hereby terminates the status of [ ] (the "Terminated
Borrowing Subsidiary") as a Borrowing Subsidiary under the Credit Agreement.
[The Company represents and warrants that no Loans made to the Terminated
Borrowing Subsidiary are outstanding as of the date hereof and that all amounts
payable by the Terminated Borrowing Subsidiary in respect of interest and/or
fees (and, to the extent notified by the Administrative Agent or any Lender, any
other amounts payable under the Credit Agreement) pursuant to the Credit
Agreement have been paid in full on or prior to the date hereof.] [The Company
acknowledges that the Terminated Borrowing Subsidiary shall continue to be a
Borrowing Subsidiary until such time as all Loans made to the Terminated
Borrowing Subsidiary shall have been paid and all amounts payable by the
Terminated Borrowing Subsidiary in respect of interest and/or fees (and, to the
extent notified by the Administrative Agent or any Lender, any other amounts
payable under the Credit Agreement) pursuant to the Credit Agreement shall have
been paid in full; provided that the Terminated Borrowing Subsidiary shall not
have the right to make further Borrowings under the Credit Agreement.]
2
This instrument shall be construed in accordance with and governed
by the law of the State of New York.
Very truly yours,
ALBANY INTERNATIONAL CORP.,
by
---------------------------
Name:
Title:
EXHIBIT B
Form of Alternate Currency Supplement
-------------------------------------
JPMorgan Chase Bank, N.A.,
as Administrative Agent for the Lenders referred to below
c/o JPMorgan Chase Bank, N.A.
Deal Management Team, Loan and Agency Services Group
1111 Fannin Street, 10th Floor
Houston, Texas 77002
with a copy to:
J.P. Morgan Europe Limited,
as London Agent for the Lenders referred to below
c/o J.P. Morgan Europe Limited
125 London Wall, 9th Floor
London, England EC2Y5AJ
[ ], 200[ ]
1. This Alternate Currency Supplement is being delivered to you
pursuant to Section 2.01(d) of the Five-Year Revolving Facility Credit
Agreement, dated as of April 14, 2006, among Albany International Corp., a
Delaware corporation, the Borrowing Subsidiaries from time to time party
thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative
Agent, and J.P. Morgan Europe Limited, as London Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used and not otherwise defined herein have the
meanings specified in the Credit Agreement.
2. The effective date (the "Effective Date") of this Alternate
Currency Supplement will be [ ], 200[ ].
[Remainder of page intentionally left blank]
2
- -----------------------------------------------------------------------------------------------------------
Alternate Currenc[y][ies]:
- -----------------------------------------------------------------------------------------------------------
Aggregate Alternate Currency
Commitment:
- -----------------------------------------------------------------------------------------------------------
Fronting Lender[s]: Name of Lender Alternate Currency
-------------- Commitment Amount(1)
--------------------
- -----------------------------------------------------------------------------------------------------------
Borrower[s]:
- -----------------------------------------------------------------------------------------------------------
List of Documentation (other than
the Credit Agreement)
governing this Alternate Currency
Supplement
(the "Documentation"):(2)
- -----------------------------------------------------------------------------------------------------------
3. [Set forth any special provisions for (i) times and places at
which or the Persons to which Borrowing Requests are to be delivered, proceeds
of Borrowings are to be disbursed or payments in respect of Borrowings are to be
made, (ii) times at which notices of prepayment of Local Rate Borrowings are to
be delivered, (iii) the rates at which interest is to accrue on Borrowings, (iv)
the compensation to be payable to Fronting Lender[s], and (v) any other special
provisions to be applicable to Borrowings under this Alternate Currency
Supplement:]
[NAME OF APPLICABLE BORROWER[S]],
by
--------------------------
Name:
Title:
- ----------
(1) If this Alternate Currency Supplement provides for Borrowings in more
than one Alternate Currency, set forth any limit on the amount that may be
borrowed in each of the Alternate Currencies contemplated hereby.
(2) Copies of the Documentation must accompany the Alternate Currency
Supplement, together with, if applicable, an English translation thereof
(provided, that the Company may instead furnish a summary term sheet in English
so long as an English translation of the Documentation is furnished to the
Administrative Agent, the London Agent and their counsel within 90 days after
the date of delivery of this Alternate Currency Supplement).
Accepted and Acknowledged:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
by
--------------------------------------------
Name:
Title:
J.P. MORGAN EUROPE LIMITED, as London Agent,
by
--------------------------------------------
Name:
Title:
[NAME OF FRONTING LENDER[S]],
as Alternate Currency Lender
by
--------------------------------------------
Name:
Title:
EXHIBIT C
Form of Issuing Bank Agreement
------------------------------
ISSUING BANK AGREEMENT (this "Agreement") dated as
of [ ], 200[ ], among ALBANY INTERNATIONAL CORP., a
Delaware corporation (the "Company"), [NAME OF ISSUING
BANK], a [ ] corporation (the "New Issuing Bank"), and
JPMORGAN CHASE BANK, N.A., as Administrative Agent for
the Lenders referred to below.
Reference is hereby made to the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings specified in the Credit
Agreement. Under the Credit Agreement, the Issuing Banks have agreed to issue
Letters of Credit in an aggregate face amount at any time outstanding not in
excess of $40,000,000 to support payment obligations incurred for general
corporate purposes of the Company and the Subsidiaries. Upon execution of this
Agreement by each of the Company, the New Issuing Bank and the Administrative
Agent, the New Issuing Bank shall be a party to the Credit Agreement, shall
constitute an "Issuing Bank" for all purposes thereof and shall have all the
rights and obligations of an Issuing Bank thereunder, and the New Issuing Bank
hereby agrees to be bound by all provisions of the Credit Agreement.
This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized officers as of the date first appearing
above.
ALBANY INTERNATIONAL CORP.,
by
---------------------------------
Name:
Title:
[NAME OF ISSUING BANK],
by
---------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
by
---------------------------------
Name:
Title:
EXHIBIT D
Form of Subsidiary Guarantee Agreement
--------------------------------------
SUBSIDIARY GUARANTEE AGREEMENT dated as of April
14, 2006 (this "Agreement"), among each of the
subsidiaries of ALBANY INTERNATIONAL CORP., a Delaware
corporation (the "Company"), listed on Schedule I hereto
or who become a party hereto as provided in Section 18
of this Agreement (collectively, the "Subsidiary
Guarantors"), and JPMORGAN CHASE BANK, N.A., as
Administrative Agent for the Lenders referred to below.
Reference is made to the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings specified in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrowers and the
Issuing Banks have agreed to issue Letters of Credit pursuant to, and upon the
terms and subject to the conditions specified in, the Credit Agreement. Each
Subsidiary Guarantor is an affiliate of the Borrowers and acknowledges that it
will derive substantial benefit from the making of the Loans by the Lenders and
the issuance of the Letters of Credit by the Issuing Banks. The obligations of
the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit
are conditioned on, among other things, the execution and delivery by the
Subsidiary Guarantors of this Agreement. In order to induce the Lenders to make
Loans and the Issuing Banks to issue the Letters of Credit, the Subsidiary
Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Subsidiary Guarantor irrevocably and
unconditionally guarantees, jointly with the other Subsidiary Guarantors and
severally, as a primary obligor and not merely as a surety, the due and punctual
payment and performance of the Obligations; provided that, notwithstanding the
foregoing, any Subsidiary Guarantor that is a Foreign Subsidiary guarantees only
the Obligations of its direct and indirect subsidiaries that are Borrowers under
the Credit Agreement (and not any Obligations of the Company or any Domestic
Subsidiary). Each Subsidiary Guarantor agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its Guarantee hereunder
notwithstanding any such extension or renewal of any Obligation. Each Subsidiary
Guarantor waives presentment to, demand of payment from and protest to any
Borrower or any other Loan Party of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
2
SECTION 2. No Limitations. Except for termination of a Subsidiary
Guarantor's obligations hereunder as expressly provided in Section 8 of this
Agreement, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a)
the failure of any Guarantee Beneficiary to assert any claim or demand or to
enforce or exercise any right or remedy under the provisions of the Credit
Agreement, this Agreement, any other Loan Document or otherwise, (b) any
extension or renewal of any of the Obligations, (c) any rescission, waiver,
amendment or modification of, or release from any of the terms or provisions of,
the Credit Agreement, this Agreement, any other Loan Document or any other
agreement, including with respect to any other Subsidiary Guarantor under this
Agreement, (d) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations (including any failure of the Company or any
Subsidiary to comply with Section 5.10 of the Credit Agreement and Section 18 of
this Agreement or (e) any other act, omission or delay to do any other act which
may or might in any manner or to any extent vary the risk of any Subsidiary
Guarantor or otherwise operate as a discharge of any Subsidiary Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations) or which would impair or eliminate any right of any
Subsidiary Guarantor to subrogation.
SECTION 3. Guarantee of Payment. Each Subsidiary Guarantor further
agrees that its guarantee hereunder constitutes a guarantee of payment when due
(whether or not any bankruptcy or similar proceeding shall have stayed the
accrual or collection of any of the Obligations or operated as a discharge
thereof) and not merely of collection, and waives any right to require that any
resort be had by any Guarantee Beneficiary to any balance of any deposit account
or credit on the books of any Guarantee Beneficiary in favor of any Borrower,
any other Loan Party or any other Person.
SECTION 4. Defenses of Loan Parties Waived. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives any defense based
on or arising out of any defense of any Borrower or any other Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Borrower or any other Loan
Party, other than the indefeasible payment in full in cash of all the
Obligations. The Guarantee Beneficiaries may, at their election, compromise or
adjust any part of the Obligations, make any other accommodation with any
Borrower or any other Loan Party or exercise any other right or remedy available
to them against any Borrower or any other Loan Party, without affecting or
impairing in any way the liability of any Subsidiary Guarantor hereunder except
to the extent all the Obligations have been fully and indefeasibly paid in cash.
To the fullest extent permitted by applicable law, each Subsidiary Guarantor
waives any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or
3
other right or remedy of such Subsidiary Guarantor against any Borrower or any
other Loan Party, as the case may be.
SECTION 5. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that any Guarantee
Beneficiary may have at law or in equity against any Subsidiary Guarantor by
virtue hereof, upon the failure of any Borrower or any other Loan Party to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Subsidiary Guarantor
hereby promises to and will, upon receipt of written demand by any Agent,
forthwith pay, or cause to be paid, to the Applicable Agent for distribution to
the applicable Guarantee Beneficiaries in cash the amount of such unpaid
Obligation. Upon payment by any Subsidiary Guarantor of any sums to the
Applicable Agent as provided above, all rights of such Subsidiary Guarantor
against any Borrower or any other Loan Party arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinated and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations (except to the
extent such subordination would be deemed to be a Lien (as defined in the Note
Agreement and Guaranty relating to the Company's 5.34% Senior Notes due 2017)).
In addition, any Indebtedness of the Company or any Subsidiary Guarantor now or
hereafter held by any Subsidiary Guarantor is hereby subordinated in right of
payment to the prior indefeasible payment in full in cash of all the Obligations
(except to the extent such subordination would be deemed to be a Lien (as
defined in the Note Agreement and Guaranty relating to the Company's 5.34%
Senior Notes due 2017)). If any amount shall erroneously be paid to any
Subsidiary Guarantor on account of (a) such subrogation, contribution,
reimbursement, indemnity or similar right or (b) any such Indebtedness of the
Company or any Subsidiary Guarantor, such amount shall be held in trust for the
benefit of the Guarantee Beneficiaries and shall forthwith be paid to the
Applicable Agent to be credited against the payment of the Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement or
any other Loan Document. Each Subsidiary Guarantor further agrees that if
payment in respect of any Obligation shall be due in a currency other than US
Dollars and/or at a place of payment other than New York and if, by reason of
any Change in Law, disruption of currency or foreign exchange markets, war or
civil disturbance or similar event, payment of such Obligation in such currency
or at such place of payment shall be impossible or, in the judgment of any
Guarantee Beneficiary, not consistent with the protection of its rights or
interests, then, at the election of such Guarantee Beneficiary, each Subsidiary
Guarantor shall make payment of such Obligation in US Dollars (based upon the
applicable Exchange Rate in effect on the date of payment) and/or in New York,
and shall indemnify such Guarantee Beneficiary against any losses or expenses
that it shall sustain as a result of such alternative payment.
SECTION 6. Information. Each Subsidiary Guarantor assumes all
responsibility for being and keeping itself informed of the Borrowers' and the
other Loan Parties' financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Subsidiary Guarantor assumes and
incurs hereunder, and agrees that none of the
4
Guarantee Beneficiaries will have any duty to advise such Subsidiary Guarantor
of information known to it or any of them regarding such circumstances or risks.
SECTION 7. Representations and Warranties; Agreements. Each
Subsidiary Guarantor represents and warrants as to itself that all
representations and warranties relating to it contained in any Loan Document to
which it is a party are true and correct in all material respects. Each
Subsidiary Guarantor agrees that the provisions of Section 2.17 of the Credit
Agreement shall apply equally to each Subsidiary Guarantor with respect to
payments made by it hereunder.
SECTION 8. Termination. The Guarantees made hereunder (a) shall,
subject to clause (b) below, terminate when all the Obligations have been
indefeasibly paid in full in cash and the Lenders have no further commitment to
lend under the Credit Agreement, the LC Exposure has been reduced to zero, and
the Issuing Banks have no further commitment to issue Letters of Credit and (b)
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Guarantee Beneficiary or any Subsidiary Guarantor
upon the bankruptcy or reorganization of any Borrower, any Subsidiary Guarantor
or otherwise. Notwithstanding the foregoing, a Subsidiary Guarantor shall
automatically be released from its obligations hereunder upon the consummation
of any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary of the Company.
SECTION 9. Effectiveness; Binding Agreement; Assignments. This
Agreement shall become effective as to any Subsidiary Guarantor when a
counterpart hereof executed on behalf of such Subsidiary Guarantor shall have
been delivered to the Administrative Agent, and a counterpart hereof shall have
been executed on behalf of the Administrative Agent, and thereafter shall be
binding upon the parties hereto and their respective successors and assigns, and
shall inure to the benefit of such Subsidiary Guarantor, the Administrative
Agent, the other Guarantee Beneficiaries and their respective successors and
assigns, except that no Subsidiary Guarantor shall have the right to assign or
otherwise transfer any of its rights or obligations hereunder or any interest
herein (except in connection with any transaction permitted by clauses (a) or
(b) of Section 6.03 of the Credit Agreement), and any such attempted assignment
or transfer shall be null and void. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party permitted hereby. This Agreement shall be
construed as a separate agreement with respect to each Subsidiary Guarantor and
may be amended, modified, supplemented, waived or released with respect to any
Subsidiary Guarantor without the approval of any other Subsidiary Guarantor and
without affecting the obligations of any other Subsidiary Guarantor hereunder.
SECTION 10. Waivers; Amendment. (a) No failure or delay of any
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power.
5
The rights and remedies of the Agents, the Issuing Banks and the Lenders
hereunder or under the Credit Agreement or any other Loan Document are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Subsidiary Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Subsidiary Guarantor in
any case shall entitle such Subsidiary Guarantor to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Subsidiary Guarantor or
Subsidiary Guarantors with respect to which such waiver, amendment or
modification is to apply, subject to any consent required in accordance with
Section 10.02 of the Credit Agreement.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 12. Notices. All communications and notices hereunder shall
be in writing and given as provided in Section 10.01 of the Credit Agreement.
All communications and notices hereunder to each Subsidiary Guarantor shall be
given to it in care of the Company as provided in Section 10.01 of the Credit
Agreement.
SECTION 13. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Subsidiary Guarantors
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the Administrative Agent, the Issuing Banks and the Lenders and
shall survive the execution and delivery of this Agreement and the making of the
Loans and issuance of any Letter of Credit, regardless of any investigation made
by any of them or on their behalf and notwithstanding that any Agent, any
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended under
the Credit Agreement, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and as long as the Commitments have not expired or been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
6
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 14. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 9. Delivery of an executed signature page to this Agreement
by facsimile or other electronic transmission shall be as effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 15. Rules of Interpretation. The rules of interpretation
specified in Sections 1.02, 1.03, 1.04 and 1.05 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 16. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Subsidiary Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 12. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR
7
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 18. Additional Subsidiary Guarantors. Pursuant to Section
5.10 of the Credit Agreement, certain additional Subsidiaries may be required
under the terms of the Credit Agreement from time to time to enter into this
Agreement as Subsidiary Guarantors. Upon execution and delivery by the
Administrative Agent and a Subsidiary of an instrument in the form of Annex I
hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally named as a Subsidiary Guarantor herein.
The execution and delivery of such instrument shall not require the consent of
any Subsidiary Guarantor hereunder. The rights and obligations of each
Subsidiary Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Agreement.
SECTION 19. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Agent, Issuing Bank and Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other Indebtedness at any
time owing by such Person to or for the credit or the account of any Subsidiary
Guarantor against any or all the obligations of such Subsidiary Guarantor now or
hereafter existing under this Agreement held by such Person, irrespective of
whether or not such Person shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Agent, Issuing
Bank and Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Person may have.
SECTION 20. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each Subsidiary Guarantor in respect of any
sum due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt
8
by the Applicable Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Subsidiary Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Subsidiary Guarantors contained in this
Section shall survive the termination of this Agreement and the payment of all
other amounts owing hereunder.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ALBANY INTERNATIONAL HOLDINGS TWO, INC.,
by
---------------------------------------
Name:
Title:
ALBANY INTERNATIONAL TECHNIWEAVE, INC.,
by
---------------------------------------
Name:
Title:
ALBANY INTERNATIONAL RESEARCH CO.,
by
---------------------------------------
Name:
Title:
GESCHMAY CORP.,
by
---------------------------------------
Name:
Title:
BRANDON DRYING FABRICS, INC.,
by
---------------------------------------
Name:
Title:
GESCHMAY WET FELTS, INC.,
by
---------------------------------------
Name:
Title:
GESCHMAY FORMING FABRICS CORP.,
by
---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
by
---------------------------------------
Name:
Title:
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTORS(1)
- ------------------------
Albany International Holdings Two, Inc.
Albany International Techniweave, Inc.
Albany International Research Co.
Geschmay Corp.
Brandon Drying Fabrics, Inc.
Geschmay Wet Felts, Inc.
Geschmay Forming Fabrics Corp.
ANNEX I
TO THE SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], 200[ ] (this
"Supplement") to the SUBSIDIARY GUARANTEE AGREEMENT
dated as of April 14, 2006 (as the same may be amended,
supplemented or otherwise modified from time to time,
the "Guarantee Agreement"), among each of the
Subsidiaries of ALBANY INTERNATIONAL CORP., a Delaware
corporation (the "Company"), listed on Schedule I
thereto (collectively, the "Subsidiary Guarantors") and
JPMORGAN CHASE BANK, N.A., as Administrative Agent for
the Lenders referred to below.
Reference is made to the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement").
Capitalized terms used and not otherwise defined herein have the
meanings specified in the Guarantee Agreement and the Credit Agreement, as
applicable.
The Subsidiary Guarantors have entered into the Guarantee Agreement
in order to induce the Lenders to make Loans and the Issuing Banks to issue
Letters of Credit. Pursuant to Section 5.10 of the Credit Agreement, certain
additional Subsidiaries may be required under the terms of the Credit Agreement
from time to time enter into the Guarantee Agreement as Subsidiary Guarantors.
Section 18 of the Guarantee Agreement provides that additional Subsidiaries may
become Subsidiary Guarantors under the Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary of the Company (the "New Subsidiary Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Subsidiary Guarantor under the Guarantee Agreement in order to induce the
Lenders to make additional Loans and the Issuing Banks to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Administrative Agent and the New Subsidiary
Guarantor agree as follows:
SECTION 1. In accordance with Section 18 of the Guarantee Agreement,
the New Subsidiary Guarantor by its signature below becomes a Subsidiary
Guarantor under the Guarantee Agreement with the same force and effect as if
originally named therein as a Subsidiary Guarantor and the New Subsidiary
Guarantor hereby (a) agrees to all the terms and provisions of the Guarantee
Agreement applicable to it as a Subsidiary Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor thereunder are true and correct on and as
2
of the date hereof. Each reference to a "Subsidiary Guarantor" in the Guarantee
Agreement shall be deemed to include the New Subsidiary Guarantor. The Guarantee
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Agents, the Issuing Banks, the Lenders and the other Guarantee Beneficiaries
that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary Guarantor and the Administrative Agent has
executed a counterpart hereof. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 12 of the Guarantee Agreement.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the fees, disbursements and other charges of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative Agent have duly executed this Supplement to the Guarantee
Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A., as Administrative
Agent,
by
---------------------------------------
Name:
Title:
EXHIBIT E
Form of Indemnity, Subrogation and Contribution Agreement
---------------------------------------------------------
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
dated as of April 14, 2006 (this "Agreement"), among
ALBANY INTERNATIONAL CORP., a Delaware corporation (the
"Company"), each Borrowing Subsidiary from time to time
party hereto, each Subsidiary of the Company listed on
Schedule I hereto or who becomes a party hereto as
provided in Section 12 of this Agreement (collectively,
the "Subsidiary Guarantors") and JPMORGAN CHASE BANK,
N.A., as Administrative Agent for the Lenders referred
to below.
Reference is made to (a) the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, as Administrative Agent, and J.P. Morgan Europe Limited, as
London Agent (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") and (b) the Subsidiary Guarantee
Agreement dated as of April 14, 2006, among the Subsidiary Guarantors and the
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Guarantee Agreement"). Capitalized terms used
herein and not otherwise defined herein have the meanings specified in the
Credit Agreement.
The Lenders have agreed to make Loans to the Borrowers and the
Issuing Banks have agreed to issue Letters of Credit pursuant to, and upon the
terms and subject to the conditions specified in, the Credit Agreement. The
Subsidiary Guarantors have guaranteed the Loans made to the Borrowers and the
other Obligations under the Credit Agreement and the other Loan Documents
pursuant to the Guarantee Agreement. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Borrowers and the
Subsidiary Guarantors of an agreement in the form hereof.
Accordingly, each Borrower, each Subsidiary Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. (a) In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have under
applicable law (but subject to Section 3 of this Agreement), the Company agrees
that in the event a payment shall be made by any Subsidiary Guarantor under the
Guarantee Agreement, the Company shall indemnify such Subsidiary Guarantor for
the full amount of such payment, and the Company shall be subrogated to the
rights of the Subsidiary Guarantor to whom such payment shall have been made to
the extent of such payment.
(b) In addition to all such rights of indemnity and subrogation as
the Subsidiary Guarantors may have under applicable law (but subject to Section
3 of this Agreement), each Borrowing Subsidiary agrees that in the event a
payment shall be made
2
by any Subsidiary Guarantor under the Guarantee Agreement with respect to an
Obligation of such Borrowing Subsidiary, such Borrowing Subsidiary shall
indemnify such Subsidiary Guarantor for the full amount of such payment, and
such Borrowing Subsidiary shall be subrogated to the rights of the Subsidiary
Guarantor to whom such payment shall have been made to the extent of such
payment.
SECTION 2. Contribution and Subrogation. Each Subsidiary Guarantor
(a "Contributing Subsidiary Guarantor") agrees (subject to Section 3 of this
Agreement) that, in the event a payment shall be made by any other Subsidiary
Guarantor under the Guarantee Agreement and such other Subsidiary Guarantor (the
"Claiming Subsidiary Guarantor") shall not have been fully indemnified by the
Borrowers as provided in Section 1, each Contributing Subsidiary Guarantor shall
indemnify the Claiming Subsidiary Guarantor in an amount equal to the amount of
such payment multiplied by a fraction of which the numerator shall be the net
worth of the Contributing Subsidiary Guarantor on the date hereof (or, in the
case of any Subsidiary Guarantor becoming a party hereto pursuant to Section 12
of this Agreement, the date of the Supplement hereto executed and delivered by
such Subsidiary Guarantor) or on the date on which enforcement is being sought,
whichever is greater, and the denominator shall be the aggregate net worth of
all the Subsidiary Guarantors on the date hereof (or, in the case of any
Subsidiary Guarantor becoming a party hereto pursuant to Section 12 of this
Agreement, the date of the Supplement hereto executed and delivered by such
Subsidiary Guarantor) or on the date on which enforcement is being sought,
whichever is greater; provided that, notwithstanding the foregoing, any
Subsidiary Guarantor that is a Foreign Subsidiary shall indemnify the Claiming
Subsidiary Guarantor only to the extent that the Claiming Subsidiary Guarantor
made a payment with respect to an obligation of a Borrower that is a direct or
indirect subsidiary of such Foreign Subsidiary (and such Foreign Subsidiary
shall not have any liability whatsoever with respect to any payment made by a
Claiming Subsidiary Guarantor which is either the Company or any Domestic
Subsidiary). Any Contributing Subsidiary Guarantor making any payment to a
Claiming Subsidiary Guarantor pursuant to this Section shall be subrogated to
the rights of such Claiming Subsidiary Guarantor under Section 1 to the extent
of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Subsidiary Guarantors under Section
1 and 2 of this Agreement and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of all the Obligations (except to the
extent such subordination would be deemed to be a Lien (as defined in the Note
Agreement and Guaranty relating to the Company's 5.34% Senior Notes due 2017)).
No failure on the part of any Borrower or any Subsidiary Guarantor to make the
payments required by Section 1 and 2 of this Agreement (or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Subsidiary Guarantor with respect to its
obligations under the Guarantee Agreement, and each Subsidiary Guarantor shall
remain liable for the full amount of the obligations of such Subsidiary
Guarantor under the Guarantee Agreement.
3
SECTION 4. Termination. This Agreement (a) shall, subject to clause
(b) below, terminate when all the Obligations have been indefeasibly paid in
full in cash and the Lenders have no further commitment to lend under the Credit
Agreement, the LC Exposure has been reduced to zero, and the Issuing Banks have
no further commitment to issue Letters of Credit and (b) shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
any Guarantee Beneficiary or any Subsidiary Guarantor upon the bankruptcy or
reorganization of any Borrower, any Subsidiary Guarantor or otherwise.
Notwithstanding the foregoing, at the time any Subsidiary Guarantor is released
from its obligations under the Guarantee Agreement in accordance with such
Guarantee Agreement and the Credit Agreement, such Subsidiary Guarantor will
cease to have any rights or obligations under this Agreement.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Waivers; Amendment. (a) No failure or delay of any Agent,
any Issuing Bank or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. All rights
and remedies hereunder are cumulative and are not exclusive of any rights or
remedies otherwise provided by law. No waiver of any provision of this Agreement
or consent to any departure by any party hereto therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Administrative Agent, the Borrowers and the Subsidiary
Guarantor or Subsidiary Guarantors with respect to which such waiver, amendment
or modification is to apply, subject to any consent required in accordance with
Section 10.02 of the Credit Agreement.
SECTION 7. Notices. All communications and notices hereunder shall
be in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party permitted hereby; and
all covenants, promises and agreements by or on behalf of the parties that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. None of the Borrowers or Subsidiary
Guarantors may assign or otherwise transfer any of its rights or obligations
hereunder or any interest herein (except in connection with any
4
transaction permitted by clauses (a) or (b) of Section 6.03 of the Credit
Agreement), and any such attempted assignment or transfer shall be null and
void.
SECTION 9. Survival of Agreement; Severability. (a) All covenants
and agreements made by the Borrowers and each Subsidiary Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
this Agreement shall be considered to have been relied upon by the
Administrative Agent, the Issuing Bank, the Lenders and each other Subsidiary
Guarantor and shall survive the execution and delivery of this Agreement, the
making of the Loans and issuances of Letters of Credit and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loans or any fee or any other amount payable under the Credit Agreement, this
Agreement or any other Loan Document is outstanding and unpaid and as long as
the Commitments have not expired or been terminated.
(b) In the event that any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10. Counterparts; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement shall become
effective with respect to any Subsidiary Guarantor when a counterpart hereof
bearing the signature of such Subsidiary Guarantor shall have been delivered to
the Administrative Agent and a counterpart hereof shall have been executed by
the Administrative Agent and the Company. This Agreement shall become effective
with respect to any Borrowing Subsidiary upon effectiveness of the Borrowing
Subsidiary Agreement with respect to such Borrowing Subsidiary. Delivery of an
executed signature page to this Agreement by facsimile or other electronic
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Sections 1.02, 1.03, 1.04 and 1.05 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 12. Additional Subsidiary Guarantors. Pursuant to Section
5.10 of the Credit Agreement, certain additional Subsidiaries may be required
under the terms of the Credit Agreement from time to time to enter into this
Agreement as Subsidiary Guarantors. Upon execution and delivery by the
Administrative Agent and a Subsidiary of an instrument in the form of Annex I
hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally
5
named as a Subsidiary Guarantor herein. The execution and delivery of such
instrument shall not require the consent of any Borrower or any Subsidiary
Guarantor hereunder. The rights and obligations of each Borrower and each
Subsidiary Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Agreement.
SECTION 13. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York and sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Subsidiary Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF, OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE
6
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first appearing
above.
ALBANY INTERNATIONAL CORP.,
by
-----------------------------------
Name:
Title:
ALBANY INTERNATIONAL HOLDINGS TWO, INC.,
by
-----------------------------------
Name:
Title:
ALBANY INTERNATIONAL TECHNIWEAVE, INC.,
by
-----------------------------------
Name:
Title:
ALBANY INTERNATIONAL RESEARCH CO.,
by
-----------------------------------
Name:
Title:
GESCHMAY CORP.,
by
-----------------------------------
Name:
Title:
BRANDON DRYING FABRICS, INC.,
by
-----------------------------------
Name:
Title:
GESCHMAY WET FELTS, INC.,
by
-----------------------------------
Name:
Title:
GESCHMAY FORMING FABRICS CORP.,
by
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A. as
Administrative Agent,
by
-----------------------------------
Name:
Title:
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
SUBSIDIARY GUARANTORS(1)
- ------------------------
Albany International Holdings Two, Inc.
Albany International Techniweave, Inc.
Albany International Research Co.
Geschmay Corp.
Brandon Drying Fabrics, Inc.
Geschmay Wet Felts, Inc.
Geschmay Forming Fabrics Corp.
- ----------
(1) To be updated, as applicable.
ANNEX I
TO THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], 200[ ] (this
"Supplement"), to the INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT dated as of April 14, 2006 (as
the same may be amended, supplemented or otherwise
modified from time to time, the "Indemnity, Subrogation
and Contribution Agreement"), among ALBANY INTERNATIONAL
CORP., a Delaware corporation (the "Company"), each
Borrowing Subsidiary from time to time party thereto,
each Subsidiary of the Company listed on Schedule I
thereto (collectively, the "Subsidiary Guarantors"), and
JPMORGAN CHASE BANK, N.A., as Administrative Agent for
the Lenders referred to below.
Reference is made to (a) the Five-Year Revolving Credit Facility
Agreement dated as of April 14, 2006, among the Company, the Borrowing
Subsidiaries from time to time party thereto, the Lenders party thereto,
JPMorgan Chase Bank, N.A. as Administrative Agent, and J.P. Morgan Europe
Limited, as London Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), and (b) the Subsidiary
Guarantee Agreement dated as of April 14, 2006, among the Subsidiary Guarantors
and the Administrative Agent (as the same may be amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement").
Capitalized terms used herein and not otherwise defined herein have
the meanings specified in the Indemnity, Subrogation and Contribution Agreement
and the Credit Agreement, as applicable.
The Borrowers, the Subsidiary Guarantors and the Administrative
Agent have entered into the Indemnity, Subrogation and Contribution Agreement in
order to induce the Lenders to make Loans and the Issuing Banks to issue Letters
of Credit. Pursuant to Section 5.10 of the Credit Agreement, certain additional
Subsidiaries may be required under the terms of the Credit Agreement from time
to time to enter into the Indemnity, Subrogation and Contribution Agreement as
Subsidiary Guarantors. Section 12 of the Indemnity, Subrogation and Contribution
Agreement provides that additional Subsidiaries may become Subsidiary Guarantors
under the Indemnity, Subrogation and Contribution Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary of the Company (the "New Subsidiary Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Subsidiary Guarantor under the Indemnity, Subrogation and Contribution
Agreement in order to induce the Lenders to make additional Loans and the
Issuing Banks to issue Letters of Credit and as consideration for Loans
previously made and Letters of Credit previously issued.
2
Accordingly, the Administrative Agent and the New Subsidiary
Guarantor agree as follows:
SECTION 1. In accordance with Section 12 of the Indemnity,
Subrogation and Contribution Agreement, the New Subsidiary Guarantor by its
signature below becomes a Subsidiary Guarantor under the Indemnity, Subrogation
and Contribution Agreement with the same force and effect as if originally named
therein as a Subsidiary Guarantor and the New Subsidiary Guarantor hereby agrees
to all the terms and provisions of the Indemnity, Subrogation and Contribution
Agreement applicable to it as a Subsidiary Guarantor thereunder. Each reference
to a "Subsidiary Guarantor" in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Subsidiary Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Agents, the Issuing Banks, the Lenders and the other Guarantee Beneficiaries
that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary Guarantor and the Administrative Agent has
executed a counterpart hereof. Delivery of an executed signature page to this
Supplement by facsimile or other electronic transmission shall be as effective
as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. In the event that any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Indemnity, Subrogation and Contribution
Agreement shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid
3
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the fees, other charges and disbursements of counsel for
the Administrative Agent.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative Agent have duly executed this Supplement to the Indemnity,
Subrogation and Contribution Agreement as of the day and year first above
written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A. as
Administrative Agent,
by
-----------------------------------
Name:
Title:
EXHIBIT F
Form of Assignment and Assumption
---------------------------------
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [NAME OF ASSIGNOR] (the "Assignor") and [NAME OF ASSIGNEE] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells
and assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ____________________________________________
2. Assignee: ____________________________________________
[and is an Affiliate/Approved Fund of [identify
Lender](1)]
3. Company: Albany International Corp.
4. Borrowers: The Company and the Borrowing Subsidiaries
5. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative
agent under the Credit Agreement
- ----------
(1) To be updated, as applicable.
2
6. Credit Agreement: The $460,000,000 Credit Agreement dated as of April
[o], 2006, among Albany International Corp., the
Lenders parties thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and J.P. Morgan Europe
Limited, as London Agent
7. Assigned Interest:
- --------------------------------------------------------------------------------------------------------------
Facility Assigned Aggregate Amount of Amount of Percentage Assigned of
Commitment/Loans for all Commitment/Loans Commitment/Loans(2)
Lenders Assigned
- --------------------------------------------------------------------------------------------------------------
Revolving Facility $ $ %
- --------------------------------------------------------------------------------------------------------------
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material
non-public information about the Company, the other Loan Parties and their
Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee's compliance
procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR],
by
----------------------
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE],
by
----------------------
Name:
Title:
- ----------
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
3
[Consented to and](3) Accepted:
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
by
--------------------------------------------
Name:
Title:
[Consented to](4)
[NAME OF RELEVANT PARTY],
by
--------------------------------------------
Name:
Title:
- ----------
(3) To be added only if the consent of the Administrative Agent is
required by the terms of the Credit Agreement.
(4) To be added only if the consent of the Company and/or other parties
(e.g. Swingline Lender, Issuing Bank) is required by the terms of the Credit
Agreement.
ANNEX 1
$460,000,000 Albany International Corp. Credit Agreement
--------------------------------------------------------
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received and/or had the opportunity to review a copy of the Credit
Agreement to the extent it has in its sole discretion deemed necessary, together
with copies of the most recent financial statements delivered pursuant to
Section 5.01(a) or 5.01(b) thereof, as applicable, and such other documents and
information as it has in its sole discretion deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This
2
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment and Assumption by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed
in accordance with, the law of the State of New York.
EXHIBIT G-1
Form of Opinion of Cleary, Gottlieb, Steen & Hamilton
-----------------------------------------------------
Writer's Direct Dial: (212) 225-2640
E-Mail: dstern@cgsh.com
April 14, 2006
JPMorgan Chase Bank,
as Administrative Agent
Deal Management Team
Loan and Agency Services Group
1111 Fannin Street, 10th Floor
Houston, TX 77022
J.P. Morgan Europe Limited,
as London Agent
125 London Wall, 9th Floor
London, England EC2Y5AJ
The Issuing Banks and the Lenders
party to the Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as special counsel to Albany International Corp., a
Delaware corporation (the "Borrower"), and each of the Subsidiaries of the
Borrower listed on Schedule I attached hereto (each such subsidiary, a
"Subsidiary" and collectively, the "Subsidiaries", and together with the
Borrower, the "Loan Parties"), in connection with the Five-Year Revolving Credit
Facility Agreement, dated as of April 14, 2006 (the "Credit Agreement"), among
the Borrower, the Borrowing Subsidiaries from time to time party thereto, the
lending institutions party thereto, JPMorgan Chase Bank, N.A., as Administrative
Agent for the Lenders, and J.P. Morgan Europe Limited, as London Agent for the
Lenders. This opinion is being delivered to you pursuant to Section 4.01(f) of
the Credit Agreement. Capitalized terms used but not defined herein have the
meanings assigned to them in the Credit Agreement.
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the Credit Agreement;
(b) an executed copy of the Subsidiary Guarantee Agreement;
2
(c) an executed copy of the Indemnity, Subrogation and Contribution
Agreement; and
(d) the following documents delivered by the Loan Parties at the
closing on the date hereof: (i) the Certificate of
Incorporation of the Borrower and the Certificate of
Incorporation of each Subsidiary, certified by the Secretary
of State of the State of Delaware or by the Secretary of State
of the State of New Hampshire, as the case may be; (ii) the
By-laws of the Borrower and each Subsidiary, certified by the
corporate secretary or an authorized officer, as the case may
be, of the Borrower or such Subsidiary; and (iii) resolutions
adopted by the Board of Directors of the Borrower and each
Subsidiary.
In addition, we have reviewed the originals or copies, certified or
otherwise identified to our satisfaction, of all such corporate records of each
Loan Party and such other instruments and other certificates of public
officials, officers and representatives of each Loan Party and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Borrower and each Subsidiary (a) is validly existing as a
corporation in good standing under the laws of its jurisdiction of organization,
(b) has all corporate power to carry on its business as now conducted and (c)
has the corporate power to execute, deliver and perform its obligations under
each of the Loan Documents governed by the law of the State of New York to which
it is a party.
2. The execution and delivery by the Borrower and each Subsidiary of
each of the Loan Documents to which it is a party (a) has been duly authorized
by all necessary corporate action and (b) will not result in a breach of or
constitute a default under (i) any provision of the By-laws or other
organizational documents of the Borrower or such Subsidiary or (ii) the General
Corporation Law of the State of Delaware or any applicable federal or New York
State statute, law, rule or regulation that is binding on the Borrower or such
Subsidiary that in our experience is normally applicable to general business
entities in relation to transactions of the type contemplated by the Loan
Documents.
3. Each Loan Document has been duly executed and delivered by the
Borrower and each Subsidiary party thereto, and each such Loan Document
constitutes a
3
valid and binding obligation of the Borrower and such Subsidiary, in each case
enforceable against the Borrower and such Subsidiary in accordance with its
terms.
4. The execution and delivery of the Loan Documents by Borrower and
each Subsidiary does not, and the performance by Borrower and each Subsidiary of
their respective obligations under the Loan Documents will not, require any
consent, approval, authorization, registration or qualification of or with any
governmental authority of the United States or the State of New York that in our
experience is normally applicable to general business entities in relation to
transactions of the type contemplated by the Loan Documents.
5. Neither the Borrower nor any Subsidiary Guarantor is an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940.
Insofar as the foregoing opinions relate to the valid existence and
good standing of the Borrower or any Subsidiary, they are based solely on the
certificates of good standing received from the Secretary of State of the State
of Delaware or the Secretary of State of the State of New Hampshire, as the case
may be. Insofar as the foregoing opinions relate to the validity, binding effect
or enforceability of any agreement or obligation of any Loan Party, we have
assumed that each party to such agreement or obligation has satisfied those
legal requirements that are applicable to it to the extent necessary to make
such agreement or obligation enforceable against it (except that no such
assumption is made as to any Loan Party regarding matters of the federal law of
the United States of America, the law of the State of New York or the General
Corporation Law of the State of Delaware, in each case that in our experience
are normally applicable to general business entities in relation to transactions
of the type contemplated by the Loan Documents). The foregoing opinions are also
subject to applicable bankruptcy, insolvency, fraudulent conveyance and similar
laws affecting creditors' rights generally and to general principles of equity.
In addition, certain of the remedial provisions of the Loan Documents may be
further limited or rendered unenforceable by other applicable laws or judicially
adopted principles which, however, in our judgment do not make the remedies
provided for therein (taken as a whole) inadequate for the practical realization
of the principal benefits purported to be afforded thereby (except for the
economic consequences of procedural or other delay).
We note that the designations in (i) Section 10.09(b) of the Credit
Agreement, (ii) Section 16(a) of the Subsidiary Guarantee Agreement, and (iii)
Section 13(a) of the Indemnity Subrogation and Contribution Agreement, of the
United States District Court for the Southern District of New York, and any
appellate court from any thereof, as the venue for actions or proceedings
relating to the Credit Agreement, the Subsidiary Guarantee Agreement and the
Indemnity Subrogation and Contribution Agreement, respectively, are
(notwithstanding the waiver in Section 10.09(c) of the Credit Agreement, Section
16(b) of the Subsidiary Guarantee Agreement and Section 13(b) of the Indemnity
Subrogation and Contribution Agreement) subject to the power of such courts to
transfer actions pursuant to 28 U.S.C. ss.1404(a) or to dismiss such actions
4
or proceedings on the grounds that such a federal court is an inconvenient forum
for such action or proceeding.
With respect to (i) the first sentence of Section 10.09(b) of the
Credit Agreement, (ii) the first sentence of Section 16(a) of the Subsidiary
Guarantee Agreement, and (iii) the first sentence of Section 13(a) of the
Indemnity Subrogation and Contribution Agreement, we express no opinion as to
the subject matter jurisdiction of any United States federal court to adjudicate
any action relating to the Loan Documents where jurisdiction based on diversity
of citizenship under 28 U.S.C. ss.1332 does not exist. In addition, we express
no opinion herein as to Section 10.08 of the Credit Agreement insofar as it
relates to setoffs in respect of participations purchased in Loans.
We note that by statute New York law provides that a judgment or
decree rendered in a currency other than the currency of the United States shall
be converted into United States dollars at a rate of exchange prevailing on the
date of entry of the judgment or decree. There is no corresponding federal
statute and no controlling federal court decision on this issue. Accordingly,
with respect to Section 10.13(b) of the Credit Agreement, we express no opinion
herein as to whether a federal court would award a judgment in a currency other
than United States dollars or, if it did so, whether such court would order the
conversion of such judgment into United States dollars.
We understand that you are satisfying yourselves as to the status
under Section 548 of the Bankruptcy Code and applicable state fraudulent
conveyance laws of the obligations of the Subsidiaries under the Loan Documents
and we express no opinion thereon.
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the General Corporation
Law of the State of Delaware.
We are furnishing this opinion letter to you solely for your benefit
in connection with the Loan Documents. This opinion letter is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Notwithstanding the foregoing, a copy of this opinion letter may be furnished
to, and relied upon by, a permitted transferee who becomes a party to the Credit
Agreement as a Lender thereunder, and you or any such transferee may show this
opinion to any governmental authority pursuant to requirements of applicable law
or regulations. The opinions expressed herein are, however, rendered on and as
of the date hereof, and we assume no obligation to advise you or any such
transferee or governmental authority or any other person, or to make any
investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
5
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By _______________________________
Donald A. Stern, a Partner
SCHEDULE I
Albany International Holdings Two, Inc., a Delaware corporation
Albany International Research Co., a Delaware corporation
Albany International Techniweave, Inc., a New Hampshire corporation
Geschmay Corp., a Delaware corporation
Brandon Drying Fabrics, Inc., a Delaware corporation
Geschmay Wet Felts, Inc., a Delaware corporation
Geschmay Forming Fabrics Corp., a Delaware corporation
EXHIBIT G-2
Form of Opinion of Charles J. Silva Jr.,
General Counsel of Albany International Corp.
---------------------------------------------
Albany International Corp.
Post Office Box 1907
Albany, New York 12201-1907 USA
Tel: 518 445 2277
Fax: 518 447 6575
Charles J. Silva, Jr.
Vice President - General Counsel
JP Morgan Chase Bank,
as Administrative Agent
Loan Agency Services Group
1111 Fannin Street, 10th Floor
Houston, Texas 77002
J.P. Morgan Europe Limited,
as London Agent
125 London Wall, 9th Floor
London, England EC245AJ
The Lenders and the Issuing Banks
party to the Credit Agreement
referred to below
April , 2006
Albany International Corp. - Credit Agreement dated as of April , 2006
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Ladies and Gentlemen:
I am the General Counsel of Albany International Corp., a Delaware
corporation (the "Borrower") and, in such capacity, have counseled the Company
in connection with the Five-Year Revolving Credit Facility Agreement dated as of
April _, 2006 (the "Credit Agreement"), among the Borrower, the Borrowing
Subsidiaries from time to time party thereto, the lending institutions party
thereto (the "Lenders"), JP Morgan Chase Bank, as Administrative Agent for the
Lenders (the "Administrative Agent"), swingline lender (in such capacity, the
"Swingline Lender") and issuing bank (in such capacity, the "Issuing Bank"), and
J.P. Morgan Europe Limited as London Agent (the "London Agent"). This opinion is
being delivered to you pursuant to Section 4.01(f)(ii) of the Credit Agreement.
Capitalized terms used but not defined herein have the meanings assigned to them
in the Credit Agreement.
In that connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as I have deemed
necessary or appropriate for purposes of this opinion, including (i) the Credit
Agreement, (ii) the Subsidiary Guarantee
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Agreement, (iii) the Indemnity, Subrogation and Contribution Agreement, (iv) the
certificate of incorporation of the Borrower and each of the Domestic
Subsidiaries of the Borrower listed on Schedule I attached hereto (collectively,
the "Albany Subsidiaries"), (v) the By-laws of the Borrower and each Albany
Subsidiary, and (vi) resolutions adopted as of or prior to the date hereof by
the Board of Directors of the Borrower and each Albany Subsidiary.
The opinions expressed herein are limited to questions arising under the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the United States of America, and I do not purport to express an
opinion on any question arising under the law of any other jurisdiction. I have
assumed, with your permission, that the signatures on all the documents that I
have examined are genuine. I have made no investigation of the matters as to
which my opinion is stated herein to be to the best of my knowledge, except that
I have inquired of the members of my staff as to whether they, to the best of
their knowledge, know of any such matters. I have also relied, with respect to
certain factual matters (other than any matter covered by the opinions set forth
below), on the representations and warranties of the Borrower and the Albany
Subsidiaries contained in the Loan Documents and have assumed compliance by the
Borrower and each Albany Subsidiary with the terms of the Loan Documents.
1. The Borrower and each Albany Subsidiary (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and (b) has the power and authority to execute, deliver and
perform its obligations under each of the Loan Documents to which it is a party
and, in the case of the Borrower, to borrow under the Credit Agreement.
2. The Borrower and each Albany Subsidiary (a) is qualified to do business
and is in good standing in each jurisdiction in which the ownership or leasing
of its properties or the conduct of its business requires such qualification,
other than jurisdictions in which the failure so to qualify could not reasonably
be expected to result, individually or in the aggregate, in a Material Adverse
Effect, and (b) has all requisite power and authority to carry on its business
as now conducted.
3. The execution, delivery and performance of each of the Loan Documents
by the Borrower and each Albany Subsidiary that is a party thereto, the
borrowings thereunder, and the Refinancings (collectively, the "Transactions")
(a) have been duly authorized by all necessary corporate action and (b) will not
conflict with, result in a breach of or constitute a default under, any
provision of the charter, by-laws or other organizational documents of the
Borrower or any Albany Subsidiary.
4. The Transactions will not (a) conflict with, result in a breach of or
constitute a default under (i) the provisions of any agreement identified in
Exhibit A to which the Borrower or any Albany Subsidiary is a party or by which
any of them or any of their respective assets is or may be bound, or (ii) to the
best of my knowledge, any order or decree of any court or government agency or
instrumentality, or (b) to the best of my knowledge, result in the creation or
imposition of any Lien upon, or with respect to, any property or assets now
owned by the Borrower or any Albany Subsidiary.
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5. To the best of my knowledge, there is no pending or threatened action,
suit or proceeding before any court or governmental agency or authority or
arbitrator involving the Borrower or any Albany Subsidiary or the business,
assets or rights of the Borrower or any Albany Subsidiary that is not disclosed
in the Credit Agreement and (i) that purports to affect the legality, validity
or enforceability of the Loan Documents or the Transactions or (ii) as to which
there is a probability of an adverse determination, and which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
* * *
This opinion is rendered only to the Administrative Agent, the London
Agent, the Issuing Banks and the Lenders and their permitted transferees under
the Credit Agreement and is solely for their benefit in connection with the
above transactions. This opinion may not be relied upon by any other person or
for any other purpose or used, circulated, quoted or otherwise referred to for
any other purpose.
Very truly yours
Charles J. Silva, Jr.
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Exhibit A
1. Borrowings of Albany International Corp. and Albany Subsidiaries
Final
Maturity
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a.
Note Agreement and Guaranty, dated as of October 25, 2017
2005, among Albany International Corp., certain of
its subsidiaries, The Prudential Insurance Company
of America and the other Purchasers named therein.
b.
Rensselaer County Industrial Development 2007 Agency 2007
Flexible Rate Demand Industrial Development Revenue
Bonds (Albany International Corp. project), 1987, as
amended.
c.
New York State Urban Development 2009 Corporation 2008
Bonds issued 1989.
d.
Indebtedness owed to Selling Shareholders of 2008 2009
Techniweave, Inc. (currently Albany International
Techniweave, Inc.) pursuant to Stock Purchase
Agreement dated as of March 5, 1998.
2. Obligations as Guarantor
a. Guarantee dated March 14,2001 by Albany
International Corp. in favor of GEFA Leasing GmbH,
relating to certain obligations of Wurttembergische
Filztuchfabrik D. Geschmay GmbH & Co. KG, not to
exceed DM 12.5 million (approx. $6 million).
b. Surety Bond, dated May 25,1994, by Albany
International Corp. for the benefit of
Forsakringsbolaget Pensionsgaranti, securing the
obligations of Albany International AB under certain
insurance policies relating to the pension
obligations of Albany International AB to employees
in Sweden.
3. Other Agreements
a. Receivables Sale Agreement, dated as of September
28,2001, among Albany
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International Receivables Corporation, Albany
International Corp., ABN AMRO Bank N.V., the
Committed Purchasers thereunder, and Amsterdam
Funding Corporation, as amended through the date
hereof.
b. Purchase and Sale Agreement, dated as of September
28,2001, among Albany International Corp., certain
Subsidiaries of Albany International Corp. named
therein, and Albany International Receivables
Corporation, as amended through the date hereof
Schedule I
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Albany International Holdings Two, Inc.*
Albany International Techniweave, Inc.**
Albany International Research Co.*
GeschmayCorp.*
Brandon Drying Fabrics, Inc.*
Geschmay Wet Felts, Inc.*
Geschmay Forming Fabrics Corp.*
* a Delaware corporation
** a New Hampshire corporation
CERTIFICATE
Delivered in connection with the Five-Year Revolving Credit Facility Agreement
(the "Credit Agreement"),
dated as of April , 2006, among
Albany International Corp., the Borrowing Subsidiaries from time to time
party thereto, the Lenders party thereto,
JP Morgan Chase Bank, as Administrative Agent,
Swingline Lender and Issuing Bank,
and J.P. Morgan Europe Limited, as London Agent
I, David C. Michaels, Vice President - Treasury and Tax, of Albany International
Corp., do hereby certify that the agreements described in Exhibit A to which
this Certificate is attached are all of the material agreements of the Company,
Albany International Holdings Two, Inc., Albany International Techniweave, Inc.,
Albany International Research Co., Geschmay Corp., Geschmay Wet Felts, Inc.,
Geschmay Forming Fabrics Corp., or Brandon Drying Fabrics, Inc. as a borrower or
guarantor.
Dated: April _, 2006
______________________
David C. Michaels