UNITED STATES
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
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Date of Report (Date of Earliest Event Reported):
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January 2, 2015
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Lionbridge Technologies, Inc.
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(Exact name of registrant as specified in its charter)
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Delaware
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000-26933
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04-3398462
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(State or other jurisdiction
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_____________
(Commission
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______________
(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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1050 Winter Street, Suite 2300, Waltham, Massachusetts
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02451
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(Address of principal executive offices)
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___________
(Zip Code)
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Registrants telephone number, including area code:
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781-434-6000
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Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On January 2, 2015, Lionbridge and its affiliates who are listed as Credit Parties in the revolving credit agreement dated as of December 21, 2006, as amended to date, among such parties and HSBC BANK USA, NATIONAL ASSOCIATION, amended and restated the revolving credit agreement (the "Amended and Restated Credit Agreement"). The Amended and Restated Credit Agreement provides for a 5-year $100 million revolving credit facility and a 5-year $35 million term facility (together with the revolving credit facility, the "Facility"). It also provides for an Incremental Facility in an aggregate amount of up to $65 million and establishes interest rates in the range of the Prime Rate plus 0.25% - 1.00% or LIBOR plus 1.25% - 2.00%, of the Prime Rate, depending on certain conditions. Proceeds are intended to be used for the Company’s acquisition of CLS Communication AG and related companies, which is expected to close in January 2015.
The Facility is secured by all of the assets of the Company and its domestic subsidiaries, is subject to certain pledges by certain of the Company’s foreign subsidiaries and upon the closing of the Company’s acquisition of CLS Communication AG and related companies , will be subject to an additional pledge related to this entity. In connection with its execution of the Amended and Restated Credit Agreement, Lionbridge and its affiliates confirmed certain security agreements as set forth in the Omnibus Amendment dated as of January 2, 2015 and the Confirmations of Deeds dated as of January 2, 2015. The description of each of the Amended and Credit Agreement, the Omnibus Amendment and each Certificate of Deed is qualified in its entirety by reference to the copy thereof filed as Exhibits 10.1 – 10-4, respectively, to this Form 8-K, which is incorporated by reference.
SIGNATURES
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.
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Lionbridge Technologies, Inc.
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January 7, 2015
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By:
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Margaret A. Shukur
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Name: Margaret A. Shukur
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Title: SVP and General Counsel
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Second Amended and Restated Credit Agreement among Lionbridge Technologies, Inc., Lionbridge International, HSBC Bank USA, NA and the other parties named therein, dated as of January 2, 2015
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10.2
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Omnibus Amendment No. 2 to Collateral Agreements related to the Amended and Restated Credit Agreement among Lionbridge Technologies, Inc., Lionbridge Internatinal, HSBC Bank USA, NA and the other parties named therein, dates as of January 2, 2015
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10.3
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Deed of Confirmation of Lionbridge International dated as of January 2, 2015
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10.4
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Deed of Confirmation of Lionbridge Luxembourg and Lionbridge Technologies, Inc. dated as of January 2, 2015
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$135,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
among
LIONBRIDGE TECHNOLOGIES, INC.,
LIONBRIDGE INTERNATIONAL FINANCE LIMITED,
and
LIONBRIDGE INTERNATIONAL
as the Borrowers,
THE MATERIAL DOMESTIC SUBSIDIARIES OF THE BORROWERS
FROM TIME TO TIME PARTIES HERETO,
as US Guarantors,
THE LENDERS PARTIES HERETO,
HSBC BANK USA, NATIONAL ASSOCIATION
as a Lender, Administrative Agent, Sole Lead Arranger and Sole Book Runner,
CITIZENS BANK, N.A.,
as Syndication Agent,
and
MUFG UNION BANK, N.A.
as Documentation Agent
Dated as of January 2, 2015
TABLE OF CONTENTS
1
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Schedules
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Schedule 1.1-1
Schedule 1.1-2
Schedule 1.1-4
Schedule 1.1-5
Schedule 2.1(a)
Schedule 2.1(b)
Schedule 2.1(c)(i)
Schedule 2.1(f)(i)
Schedule 2.1(f)(ii)
Schedule 2.3(d)
Schedule 2.10
Schedule 3.3
Schedule 3.12
Schedule 3.16
Schedule 3.19(a)
Schedule 3.19(b)
Schedule 3.19(c)
Schedule 3.22
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Account Designation Letter
Permitted Liens
Existing Letters of Credit
Corporate Investment Policy
Term Loan Commitments
Revolving Loan Commitments
Form of Notice of Borrowing
Form of Revolving Note
Form of Term Note
Form of Swingline Note
Form of Notice of Conversion/Extension
Jurisdictions of Organization/Qualification
Subsidiaries
Intellectual Property
Location of Real Property
Location of Tangible Personal Property
Chief Executive Offices/Principal Place of Business
Labor Matters |
Schedule 3.23 Required Collateral Permitted to be Delivered or Perfected Post-Closing
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Schedule 3.25
Schedule 3.26
Schedule 3.29
Schedule 4.1(m)
Schedule 4.1(j)
Schedule 5.10
Schedule 6.1(b)
Schedule 9.6(c)
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Material Contracts
Insurance
Board of Directors; Capitalization
Form of Secretarys Certificate
Form of Solvency Certificate
Form of Joinder Agreement
Indebtedness
Form of Assignment Agreement |
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this Agreement or this
Credit Agreement), dated as of January 2, 2015, is by and among LIONBRIDGE TECHNOLOGIES,
INC., a Delaware corporation (the Company), LIONBRIDGE INTERNATIONAL FINANCE LIMITED, a
company formed under the laws of Ireland (LIFL), and LIONBRIDGE INTERNATIONAL, a company
formed under the laws of Ireland (LII) (LIFL and LII, together, the Foreign
Borrowers and, together with the Company, the Borrowers, and each individually a
Borrower), those Material Domestic Subsidiaries of the Company identified as US
Guarantors on the signature pages hereto and such other Material Domestic Subsidiaries of the
Company as may from time to time become a party hereto (each a US Guarantor and
collectively, the US Guarantors), the Foreign Guarantors from time to time parties hereto
(each a Foreign Guarantor and collectively, the Foreign Guarantors), the
several banks and other financial institutions as may from time to time become parties to this
Credit Agreement (the Lenders and each a Lender), HSBC BANK USA, NATIONAL
ASSOCIATION, a national banking association, as a Lender, administrative agent for the Lenders
hereunder (in such capacity, the Administrative Agent), sole lead arranger and sole book
runner.
W I T N E S S E T H:
WHEREAS, the Borrowers, the US Guarantors, the Foreign Guarantors, the Administrative Agent
and the lenders party thereto are parties to that certain Credit Agreement, dated as of December
21, 2006, as amended and restated by the Amended and Restated Credit Agreement, dated as of
October 30, 2013 (as the same may have been further amended, the Existing Agreement);
WHEREAS, the Borrowers have requested, and HSBC and the Lenders have agreed, to amend and
restate the Existing Agreement.
WHEREAS, the parties hereto are willing to so amend and restate the Existing Agreement upon
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
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Section 1.1 Defined Terms. |
As used in this Credit Agreement, terms defined in the preamble to this Credit Agreement have
the meanings therein indicated, and the following terms have the following meanings:
Accessible Borrowing Availability shall mean, as of any date of determination, the
amount that the Borrowers are able to borrow on such date under the Revolving Committed Amount
without a Default or Event of Default occurring or existing after giving pro forma effect to such
borrowing.
Account Designation Letter shall mean the Notice of Account Designation Letter dated
as of the Closing Date from the Company to the Administrative Agent substantially in the form
attached hereto as Schedule 1.1-1.
Additional Credit Party shall mean each Person that becomes a US Guarantor by
execution of a Joinder Agreement in accordance with Section 5.10.
Additional Foreign Guarantors shall mean Lionbridge Luxembourg S.à.r.l., a company
formed under the laws of Luxembourg.
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
the sum of (a) the Eurocurrency Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate.
Administrative Agent shall have the meaning set forth in the first paragraph of this
Credit Agreement and any successors and/or assigns in such capacity.
Administrative Agents Office shall mean, with respect to any currency, the
Administrative Agents address and, as appropriate, account as set forth in Section 9.2 with
respect to such currency, or such other address or account with respect to such currency as the
Administrative Agent may from time to time notify to the Company and the Lenders.
Administrative Details Form shall mean, with respect to any Lender, a document
containing such Lenders contact information for purposes of notices provided under this Credit
Agreement and account details for purposes of payments made to such Lender under this Credit
Agreement.
Affected Lender shall have the meaning set forth in Section 2.15(a).
Agent Parties shall have the meaning given in Section 9.2(d).
Affiliate shall mean as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be controlled by a Person if such Person
possesses, directly or indirectly, power either (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b) to direct or cause the
direction of the management and policies of such Person whether by contract or otherwise.
Agreement shall have the meaning set forth in the first paragraph of this Agreement,
and shall mean this Credit Agreement, as amended, modified, restated, extended, replaced or
supplemented from time to time in accordance with its terms.
Alternate Base Rate shall mean, for any day, a rate per annum equal to the greater
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%. For purposes hereof: Prime Rate shall mean, at any time, the rate of
interest per annum publicly announced from time to time by HSBC at its principal office in New
York, NY as its prime rate. Each change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties hereto acknowledge that the
rate announced publicly by HSBC as its Prime Rate is an index or base rate and shall not
necessarily be its lowest or best rate charged to its customers or other banks; and Federal Funds
Effective Rate shall mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published on the next succeeding Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the terms above, the
Alternate Base Rate shall be determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the opening of business on the date of such change.
Alternate Base Rate Loans shall mean Loans that bear interest at an interest rate
based on the Alternate Base Rate.
Anti-Corruption Laws shall mean all laws, rules, and regulations of any jurisdiction
applicable to any Credit Party from time to time concerning or relating to bribery or corruption.
Applicable Laws means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, licenses, authorizations and permits of, and
agreements with, any Governmental Authority, in each case whether or not having the force of law,
and with respect to each Borrower or Guarantor, such Applicable Laws as are applicable to such
Borrower or Guarantor.
Applicable Percentage shall mean, for any day, the rate per annum set forth below
opposite the applicable level then in effect, it being understood that the Applicable Percentage
for (a) Revolving Loans and Term Loans that are LIBOR Rate Loans shall be the percentage set forth
under the column LIBOR Rate Margin for Revolving Loans, Term Loans and Letter of Credit Fee, (b)
the Letter of Credit Fee shall be the percentage set forth under the column LIBOR Rate Margin for
Revolving Loans and Letter of Credit Fee, (c) Revolving Loans and Term Loans that are Alternate
Base Rate Loans shall be the percentage set forth under the column Alternate Base Rate Margin for
Revolving Loans and Term Loans and (d) the Commitment Fee shall be the percentage set forth under
the column Commitment Fee:
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LIBOR Rate Margin |
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for Revolving |
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Alternate Base Rate |
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Loans, Term Loans |
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Margin for |
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and Letter of |
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Revolving Loans and |
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Level |
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Leverage Ratio |
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Credit Fee |
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Term Loans |
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Commitment Fee |
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= 2.50 to 1.0
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2.00 |
% |
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1.00 |
% |
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0.400 |
% |
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II
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= 1.50 to 1.0 but
< 2.50 to 1.0
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1.75%
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0.75%
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0.350%
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III
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> 1.00 to 1.0 but
< 1.50 to 1.0
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1.50%
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0.50%
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0.300%
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IV
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< 1.00 to 1.0
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1.25 |
% |
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0.25 |
% |
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0.250 |
% |
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The Applicable Percentage shall, in each case, be determined and adjusted quarterly on the
date five (5) Business Days after the date on which the Administrative Agent has received from the
Company the quarterly and annual financial information and the certifications required to be
delivered to the Administrative Agent and the Lenders in accordance with the provisions of Sections
5.1(a), 5.1(b) and 5.2(a) pursuant to which the Company shall notify the Administrative Agent of a
change in the applicable pricing level based on the financial information contained therein (each
an Interest Determination Date). Subject to the last sentence of this definition, such
Applicable Percentage shall be effective from such Interest Determination Date until the next such
Interest Determination Date. Notwithstanding the foregoing, (i) the initial Applicable Percentage
for Revolving Loans and Letter of Credit Fees shall be set at Level II until the Interest
Determination Date occurring after the delivery of the officers compliance certificate pursuant to
Section 5.2(a) for the quarter ended March 31, 2015, and (ii) the initial Commitment Fee shall be
set at Level II until the Interest Determination Date occurring after the delivery of the officers
compliance certificate pursuant to Section 5.2(a) for the quarter ended March 31, 2015. If the
Company shall fail to provide the quarterly and annual financial information and certifications in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(a), the Applicable Percentage
shall, on the date five (5) Business Days after the date by which the Company was so required to
provide such financial information and certifications to the Administrative Agent and the Lenders,
be based on Level I until such time as such information and certifications are provided, whereupon
the Level shall be determined by the then current Leverage Ratio.
Applicable Time shall mean, with respect to any borrowings and payments in Foreign
Currencies, the local times in the place of settlement for such Foreign Currencies as may be
determined by the Administrative Agent to be necessary for timely settlement on the relevant date
in accordance with normal banking procedures in the place of payment.
Approved Fund shall mean, with respect to any Lender, any fund or trust or entity
that invests in commercial bank loans in the ordinary course of business and is advised or managed
by (a) such Lender, (b) an Affiliate of such Lender, (c) any other Lender or any Affiliate thereof
or (d) the same investment advisor as any Person described in clauses (a) (c).
Arranger shall mean HSBC.
Assignment Agreement shall mean an Assignment Agreement, substantially in the form
of Schedule 9.6(c).
Bankruptcy Code shall mean the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.
Bankruptcy Event shall mean the occurrence of an Event of Default under Section
7.1(e).
Borrower and Borrowers shall have the meaning set forth in the first
paragraph of this Credit Agreement.
Borrowing Date shall mean, in respect of any Loan, the date such Loan is made.
Business shall have the meaning set forth in Section 3.10(b).
Business Day shall mean a day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to close; provided,
however, that (a) when used in connection with a rate determination, borrowing or payment in
respect of a LIBOR Rate Loan, the term Business Day shall also exclude any day on which banks in
London, England are not open for dealings in deposits of Dollars or Foreign Currencies, as
applicable, in the London interbank market and (b) when used in connection with a Foreign Currency
Loan, the term Business Day shall also exclude any day on which banks are not open for foreign
exchange dealings between banks in the exchange of the home country of such Foreign Currency.
Capital Lease shall mean any lease of property, real or personal, the obligations
with respect to which are required to be capitalized on a balance sheet of the lessee in accordance
with GAAP.
Capital Lease Obligations shall mean the capitalized lease obligations relating to a
Capital Lease determined in accordance with GAAP.
Capital Stock shall mean (a) in the case of a corporation or company, capital stock
or shares, (b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of capital stock, (c) in the case
of a partnership, partnership interests (whether general or limited), (d) in the case of a limited
liability company, membership interests and (e) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
CDOR shall have the meaning given in the definition of Eurocurrency Rate.
Change in Law means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in
Law, regardless of the date enacted, adopted or issued.
Change of Control shall mean at any time the occurrence of any of the following
events: (a) any person or group (as such terms are used in Section 13(d) and 14(d) of the
Exchange Act), is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have beneficial ownership of all securities
that such person has the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 40% or more of the then outstanding Voting
Stock of the Company; or (b) the replacement of a majority of the Board of Directors of the Company
over a two-year period from the directors who constituted the Board of Directors at the beginning
of such period, and such replacements shall not have been approved or nominated by a vote of at
least a majority of the Board of Directors of the Company then still in office who either were
members of such Board of Directors at the beginning of such period or whose election as a member of
such Board of Directors was previously so approved.
Closing Date shall mean the date of this Credit Agreement.
CLS shall mean CLS Corporate Language Services Holding AG, a company organized under
the laws of Switzerland.
CLS Acquisition shall mean the acquisition by LII of all of the outstanding shares
of CLS, directly or indirectly, pursuant to the CLS Share Purchase Agreement.
CLS Acquisition Agreement shall mean that certain Share Purchase Agreement dated as
of November 9, 2014, as amended to date, among LII and the CLS Sellers.
CLS Acquisition Reps shall have the meaning set forth in Section 4.1(d).
CLS Parties shall mean CLS, Tuscany and each of their respective Subsidiaries.
CLS Sellers shall mean the persons and entities identified as the Sellers in the
CLS Acquisition Agreement.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
Collateral shall mean a collective reference to the collateral that is identified
in, and at any time will be covered by, the Security Documents, and any other property or assets of
a Credit Party, whether tangible or intangible and whether real or personal, upon which the
Administrative Agent has been granted a Lien.
Commitment shall mean the Revolving Commitments, the LOC Commitment, the Swingline
Commitments and the Term Commitments, individually or collectively, as appropriate.
Commitment Fee shall have the meaning set forth in Section 2.5(a).
Commitment Letter shall mean the letter agreement dated November 8, 2014 addressed
to the Borrowers from the Administrative Agent and the Arranger, as amended, modified or otherwise
supplemented.
Commitment Percentage shall mean the Revolving Commitment Percentage.
Commitment Period shall mean the period from and including the Closing Date to but
excluding the Revolving Commitment Termination Date.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C § 1 et seq.), as
amended from time to time, and any successor statute.
Commonly Controlled Entity shall mean an entity, whether or not incorporated, that
is under common control with the Company within the meaning of Section 4001 of ERISA or is part of
a group that includes the Company and that is treated as a single employer under Section 414 of the
Code.
Communications shall have the meaning set forth in Section 9.2(d).
Company shall have the meaning set forth in the first paragraph of this Credit
Agreement.
Connection Income Taxes means Other Connection Taxes that are imposed on or measured
by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Capital Expenditures shall mean, for any period, all capital
expenditures of the Company and its Subsidiaries on a consolidated basis for such period, as
determined in accordance with GAAP. The term Consolidated Capital Expenditures shall not include
capital expenditures in respect of the reinvestment of proceeds derived from Recovery Events
received by the Company and its Subsidiaries to the extent that such reinvestment is permitted
under the Credit Documents.
Consolidated EBITDA shall mean, for each period, the sum of (a) Consolidated Net
Income for such period, plus (b) an amount that, in the determination of Consolidated Net Income
for such period, has been deducted for (i) interest expense; (ii) total federal, state, local and
foreign income, value added and similar taxes; (iii) non-cash charges associated with employee
stock and option plans; (iv) depreciation and amortization expense for such period; (v)
amortization or write-down of intangibles (including, but not limited to, goodwill) (vi) up to
$2,500,000 of realized foreign exchange charges related to hedging agreements; (vii) other non-cash
charges not to exceed $1,000,000 for such period; (viii) for any period ending on or before June
30, 2016, non-recurring cash and non-cash charges not to exceed $15,000,000 annually; and (ix) for
any period ending subsequent to June 30, 2016, non-recurring cash and non-cash charges not to
exceed $7,000,000 annually, provided, however, that such non-recurring cash and
non-cash charges in clauses (viii) and (ix) do not exceed, without duplication, $26,700,000 in the
aggregate during the term of this Credit Agreement; minus (c) any non-cash charge (other than
non-cash charges reflected in clauses (viii) and (ix)) previously added back to Consolidated Net
Income in the calculation of Consolidated EBITDA to the extent such non-cash charge becomes a cash
charge plus realized foreign exchange gains related to hedging agreements, all as
determined in accordance with GAAP. Consolidated Interest Expense shall mean, for any
period, all interest expense of the Company and its Subsidiaries (including, without limitation,
the interest component under Capital Leases, but excluding intercompany interest expense), as
determined in accordance with GAAP.
Consolidated Net Income shall mean, for any period, net income (excluding
extraordinary items, interest income and tax credits, rebates and other benefits) for such period
of the Company and its Subsidiaries on a consolidated basis, as determined in accordance with GAAP.
Consolidated Revenues shall mean, for any period, revenues for such period of the
Company and its Subsidiaries on a consolidated basis, as determined in accordance with GAAP.
Contractual Obligation shall mean, as to any Person, any provision of any security
issued by such Person or of any contract, agreement, instrument or undertaking to which such Person
is a party or by which it or any of its property is bound.
Copyright Licenses shall mean any agreement, written or oral, providing for a grant
by or to a Credit Party of any right under any Copyright, including, without limitation, any
thereof referred to in Schedule 3.16, but excluding any license of a Copyright to a Credit Party
with respect to a generally available product.
Copyrights shall mean (a) all registered United States copyrights in all Works, now
existing or hereafter created or acquired, all registrations and recordings thereof, and all
applications in connection therewith, including, without limitation, registrations, recordings and
applications in the United States Copyright Office and any thereof referred to in Schedule
3.16, and (b) all renewals thereof including, without limitation, any renewals thereof referred
to in Schedule 3.16.
Corporate Investment Policy Investments shall mean Investments made in accordance
with the Corporate Investment Policy set forth on Schedule 1.1-5 attached hereto.
Credit Agreement shall mean this Credit Agreement, as amended, modified, restated,
extended, replaced or supplemented from time to time in accordance with its terms.
Credit Documents shall mean this Credit Agreement, each of the Notes, any Joinder
Agreement, the Letters of Credit, any Assignment Agreement, the LOC Documents, the Security
Documents and all other agreements, documents, certificates and instruments delivered to the
Administrative Agent or any Lender by any Credit Party in connection therewith (other than any
Hedging Agreement, any pooling agreement or any cash management agreement, and any agreement,
document, certificate or instrument related thereto).
Credit Party shall mean any of the Borrowers, the US Guarantors or the Foreign
Guarantors, individually or collectively, as appropriate.
Credit Party Obligations shall mean, without duplication, (a) all of the
obligations, indebtedness and liabilities of the Credit Parties to the Lenders (including the
Issuing Lender and the Swingline Lender) and the Administrative Agent, whenever arising, under this
Credit Agreement, the Notes or any of the other Credit Documents, including principal, interest,
fees, reimbursements and indemnification obligations and other amounts (including, but not limited
to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the
Bankruptcy Code with respect to any Credit Party, regardless of whether such interest is an allowed
claim under the Bankruptcy Code) and (b) all liabilities and obligations, whenever arising, owing
from the Credit Parties or any of their Subsidiaries to any Hedging Agreement Provider arising
under, or in connection with, any Secured Hedging Agreement, and (c) all liabilities and
obligations, whenever arising, owing from the Credit Parties or any of their Subsidiaries to any
Lender arising under, or in connection with, any pooling agreement or cash management agreement;
provided, however, that the definition of Credit Party Obligations shall not create any guarantee
by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any
Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any
Guarantor.
Debtor Relief Laws shall mean the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or
other applicable jurisdictions from time to time in effect.
Default shall mean any event that would constitute an Event of Default, whether or
not any requirement for the giving of notice or the lapse of time, or both, or any other condition,
has been satisfied.
Defaulting Lender shall mean, subject to Section 2.22(b), any Lender that (a) has
failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans
were required to be funded hereunder, or (ii) pay to the Administrative Agent, any Issuing Lender,
any Swingline Lender or any other Lender any other amount required to be paid by it hereunder
(including in respect of its participation in Letters of Credit or Swingline Loans) within two
Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any
Issuing Lender or Swingline Lender in writing that it does not intend to comply with its funding
obligations hereunder, or has made a public statement to that effect, (c) has failed, within three
Business Days after written request by the Administrative Agent or the Borrower, to confirm in
writing to the Administrative Agent and the Borrower that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease to be a Defaulting
Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i)
become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in
such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue
of the ownership or acquisition of any equity interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority so long as such ownership interest does not
result in or provide such Lender with immunity from the jurisdiction of courts within the United
States or from the enforcement of judgments or writs of attachment on its assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or
agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and
binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject
to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, each
Issuing Lender, each Swingline Lender and each Lender.
Deposit Account Control Agreement shall mean an agreement among a Credit Party, a
depository institution, and the Administrative Agent, which agreement is in a form acceptable to
the Administrative Agent and which provides the Administrative Agent with control (as such term
is used in Article 9 of the Uniform Commercial Code) over the deposit accounts described therein,
as the same may be amended, restated, supplemented, extended, replaced or otherwise modified from
time to time.
Designated Funding Subsidiary shall have the meaning set forth in Section
2.1(c)(iv).
Designating Lender shall have the meaning set forth in Section 2.1(c)(iv).
Dollar Amount shall mean, at any time, (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of any Foreign Currency or an
amount denominated in such Foreign Currency, the equivalent amount thereof in Dollars as determined
by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) applicable to such Foreign Currency.
Dollars and $ shall mean dollars in lawful currency of the United States
of America.
Domestic Lending Office shall mean, initially, the office of each Lender designated
as such Lenders Domestic Lending Office in such Lenders Administrative Details form; and
thereafter, such other office of such Lender as such Lender may from time to time specify to the
Administrative Agent and the Company as the office of such Lender at which Alternate Base Rate
Loans of such Lender are to be made.
Domestic Subsidiary shall mean any Subsidiary that is organized and existing under
the laws of the United States or any state or commonwealth thereof or under the laws of the
District of Columbia.
EMU shall mean Economic and Monetary Union as contemplated in the Treaty on European
Union.
EMU Legislation shall mean legislative measures of the European Council (including
without limitation European Council regulations) for the introduction of, changeover to or
operation of a single or unified European currency (whether known as the Euro or otherwise), being
in part the implementation of the third stage of EMU.
Environmental Laws shall mean any and all applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements
of any Governmental Authority or other Requirement of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning protection of human health or
the environment, as now or may at any time be in effect during the term of this Credit Agreement.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.
Euro shall mean the single currency of Participating Member States of the European
Union.
Eurocurrency Loan means any Loan denominated in a LIBOR Quoted Currency or Canadian
dollars.
Eurocurrency Rate means, with respect to any Eurocurrency Loan, (i) denominated in a
Foreign Currency that is a LIBOR Quoted Currency, the rate per annum equal to LIBOR for such
currency, or (ii) denominated in Canadian dollars, the rate per annum equal to the Canadian Dealer
Offered Rate (CDOR), as published on the applicable Bloomberg screen page (or such other
commercially available source providing such quotations as may be designated by the Administrative
Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant currency (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period, and if either
such rate becomes unavailable, a comparable or successor rate which rate is approved by the
Administrative Agent.
Euro Unit shall mean the currency unit of the Euro.
Eurodollar Reserve Percentage shall mean for any day, the maximum rate (expressed as
a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) at which any bank
subject thereto would be required to maintain reserves under Regulation D of the Board of Governors
of the Federal Reserve System (or any successor or similar regulations relating to such reserve
requirements) against Eurocurrency Liabilities (as that term is used in Regulation D), if such
liabilities were outstanding. The Eurodollar Reserve Percentage shall be adjusted automatically on
and as of the effective date of any change in the Eurodollar Reserve Percentage.
Event of Default shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of time, or
both, or any other condition, has been satisfied.
Exchange Act shall mean the Securities Exchange Act of 1934, together with any
amendment thereto or replacement thereof and any rules or regulations promulgated thereunder.
Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation
if, and to the extent that, all or a portion of the Guaranty Obligation of such Guarantor of , or
the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty
thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of
the Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) (a) by virtue of such Guarantors failure for any reason to constitute an eligible
contract participant as defined in the Commodity Exchange Act and the regulations thereunder at
the time the guaranty of such Guarantor or the grant of such security interest becomes or would
become effective with respect to such Swap Obligation or (b) in the case of a Swap Obligation
subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any
successor provision thereto), because such Guarantor is a financial entity, as defined in Section
2(h)(7)(C)(i) the Commodity Exchange Act (or any successor provision thereto), at the time the
guaranty of such Guarantor becomes or would become effective with respect to such related Swap
Obligation. If a Swap Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Swap Obligation that is attributable to
swaps for which such guaranty or security interest is or becomes illegal.
Excluded Taxes means any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed
on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its applicable lending office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest
in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 2.20) or (ii) such Lender changes its lending office, except in each case to the extent
that, pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such
Lenders assignor immediately before such Lender became a party hereto or to such Lender
immediately before it changed its lending office, (c) Taxes attributable to such Recipients
failure to comply with Section 2.18(b) and (d) any U.S. federal withholding Taxes imposed under
FATCA.
Excluded US Subsidiary shall have the meaning set forth in Section 5.10.
Existing Agreement shall have the meaning set forth in the Preamble.
Existing Letters of Credit shall mean each of the letters of credit described by
date of issuance, amount, beneficiary and the date of expiry on Schedule 1.1-4 hereto.
Extension of Credit shall mean, as to any Lender, the making of a Loan by such
Lender or the issuance of, or participation in, a Letter of Credit by such Lender.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof and
any agreement entered into pursuant to Section 1471(b)(1) of the Code.
FATCA Information shall have the meaning set forth in Section 2.18(b)(iv).
Federal Funds Effective Rate shall have the meaning set forth in the definition of
Alternate Base Rate.
Fee Letter means that certain Fee Letter, dated November 9, 2014, among the
Borrowers and the Administrative Agent.
Fixed Charge Coverage Ratio shall mean, with respect to the Company and its
Subsidiaries on a consolidated basis for the four consecutive quarters ending on the last day of
any fiscal quarter of the Company, the ratio of (a) Consolidated EBITDA for the applicable period,
minus Consolidated Capital Expenditures for the applicable period, minus Restricted Payments
permitted under Section 6.10(c) to the extent paid in cash during the applicable period to (b) the
sum of Consolidated Interest Expense paid or payable in cash for such period plus amounts paid or
payable in cash during such period paid in respect of federal, state, local and foreign income,
value added and similar taxes plus scheduled principal payments of the Term Loans pursuant to
Section 2.7(a).
Flood Hazard Property shall mean any real property of a Credit Party that is located
in an area designated by the Federal Emergency Management Agency as having special flood or mud
slide hazards.
Foreign Borrowers shall have the meaning set forth in the first paragraph of this
Credit Agreement.
Foreign Credit Party shall mean any of the Foreign Borrowers or the Additional
Foreign Guarantors, individually or collectively, as appropriate.
Foreign Currency shall mean Euros, Swiss Francs, Canadian dollars, Pounds Sterling
and Japanese Yen.
Foreign Currency Equivalent shall mean, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by the
Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) applicable to such Foreign Currency.
Foreign Currency Loan shall mean any Loan denominated in a Foreign Currency.
Foreign Guarantors shall mean the Additional Foreign Guarantors, together with the
Company, and each individually a Foreign Guarantor.
Foreign Guaranty shall mean the guaranty of the Foreign Guarantors set forth in
Article XI.
Foreign Lender means a Lender that is not a United States Person as defined in
Section 7701(a)(30) of the Code.
Foreign Pledge Agreements shall mean, collectively, the Charge on Shares of
Lionbridge International, the Charge on Shares of Lionbridge International Finance Limited, and,
when executed and delivered by LII after the Closing, the Share Pledge Agreement with respect to
100% of the shares of Tuscany and approximately 30% of the shares of CLS, executed under Swiss law.
Foreign Pledge Documents shall mean the Foreign Pledge Agreements and, without
limitation, any additional agreements or filings in connection with the Foreign Pledge Agreements.
Foreign Subsidiary shall mean any Subsidiary of a Credit Party that is not a
Domestic Subsidiary.
Fronting Exposure shall mean, at any time there is a Defaulting Lender, (a) with
respect to any Issuing Lender, such Defaulting Lenders Revolving Commitment Percentage of the
outstanding LOC Obligations with respect to Letters of Credit issued by such Issuing Lender other
than LOC Obligations as to which such Defaulting Lenders participation obligation has been
reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b)
with respect to any Swingline Lender, such Defaulting Lenders Revolving Commitment Percentage of
outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which
such Defaulting Lenders participation obligation has been reallocated to other Lenders.
Funding Indemnity Letter shall mean a letter agreement between the Administrative
Agent and the Company pursuant to which the Company agrees to indemnify the Lenders in accordance
with the terms of Section 2.17 for any funding loss or expense incurred by the Lenders related to
the Loans to be made on the Closing Date.
GAAP shall mean generally accepted accounting principles in effect in the United
States of America applied on a consistent basis (or, when used in relation to a Foreign Subsidiary,
generally accepted accounting principles in effect in the country of such Foreign Subsidiarys
organization applied on a consistent basis, to the extent applicable), subject, however, in the
case of determination of compliance with the financial covenants set out in Section 5.9, to the
provisions of Section 1.3.
Guarantor shall mean the US Guarantor and all Foreign Guarantors.
Government Acts shall have the meaning set forth in Section 2.19.
Governmental Authority shall mean the government of the United States of America or
any other nation, or of 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 (including any supra-national bodies such as the European Union or the
European Central Bank).
Guaranty Obligations shall mean, with respect to any Person, without duplication,
any obligations of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any other Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any
property constituting security therefor, (b) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation keep well agreements,
maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of
any holder of Indebtedness of such other Person, (c) to lease or purchase Property, securities or
services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise
assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is made.
Hedging Agreement Provider shall mean any Person that enters into a Secured Hedging
Agreement with a Credit Party or any of its Subsidiaries that is permitted by Section 6.1 to the
extent such Person is a Lender, an Affiliate of a Lender or any other Person that was a Lender (or
an Affiliate of a Lender) at the time it entered into the Secured Hedging Agreement but has ceased
to be a Lender (or whose Affiliate has ceased to be a Lender) under the Credit Agreement.
Hedging Agreements shall mean, with respect to any Person, any agreement entered
into to protect such Person against fluctuations in interest rates, or currency or raw materials
values, including, without limitation, any interest rate swap, cap or collar agreement or similar
arrangement between such Person and one or more counterparties, any foreign currency exchange
agreement, currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements.
HSBC means HSBC Bank USA, National Association
Increase shall have the meaning set forth in Section 2.4(a).
Increase Effective Date shall have the meaning set forth in Section 2.4(b).
Increase Request shall have the meaning set forth in Section 2.4(a).
Incremental Facilities shall have the meaning set forth in Section 2.4(a).
Indebtedness shall mean, with respect to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property purchased by such Person
(other than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations (including, without limitation,
earnout obligations) of such Person incurred, issued or assumed as the deferred purchase price of
property or services purchased by such Person (other than trade debt incurred in the ordinary
course of business and due within six months of the incurrence thereof) that would appear as
liabilities on a balance sheet of such Person, (e) the principal portion of all obligations of such
Person under Capital Leases, (f) all obligations of such Person under Hedging Agreements, excluding
any portion thereof that would be accounted for as interest expense under GAAP, (g) the maximum
amount of all letters of credit issued or bankers acceptances facilities created for the account
of such Person and, without duplication, all drafts drawn and unreimbursed thereunder (excluding
performance based letters of credit issued to the Borrowers customers in connection with certain
long-term contracts), (h) all preferred Capital Stock or other equity interests issued by such
Person and which by the terms thereof are (at the request of the holders thereof or otherwise)
subject to mandatory sinking fund payments, redemption or other acceleration prior to the date
which is six months after the Maturity Date, (i) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product, (j) all obligations of such Person under take or pay or similar arrangements or
under commodities agreements, (k) all Indebtedness of others of the type described in clauses (a)
through (j) hereof secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the obligations secured
thereby have been assumed, (l) all Guaranty Obligations of such Person with respect to Indebtedness
of another Person of the type described in clauses (a) through (j) hereof, and (m) all Indebtedness
of the type described in clauses (a) through (j) hereof of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer, except to the extent such
Indebtedness is expressly non-recourse to such Person. Indebtedness of any Person shall be
determined in accordance with GAAP.
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of the Borrowers under any Credit
Document and (b) to the extent not otherwise described in (a), Other Taxes.
Initial Revolving Loans shall mean Revolving Loans made on the Closing Date (i) to
fund the purchase price and related expenses in connection with the CLS Acquisition, (ii) to pay
fees and expenses in connection with this Agreement and (iii) to repay or refinance all loans under
the Existing Agreement.
Insolvency shall mean, with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.
Insolvent shall mean being in a condition of Insolvency.
Intellectual Property shall mean all Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks and Trademark Licenses.
Interest Determination Date shall have the meaning assigned thereto in the
definition of Applicable Percentage.
Interest Payment Date shall mean (a) as to any Alternate Base Rate Loan or Swingline
Loan, the last Business Day of each March, June, September and December and on the applicable
Maturity Date, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the
last day of such Interest Period and (c) as to any LIBOR Rate Loan having an Interest Period longer
than three months, each day which is three months after the first day of such Interest Period and
the last day of such Interest Period.
Interest Period shall mean, with respect to any LIBOR Rate Loan,
(a) initially, the period commencing on the Borrowing Date or conversion date, as the
case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, subject to availability, as selected by the Company in the Notice of Borrowing
or Notice of Conversion given with respect thereto; and
(b) thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months
thereafter, subject to availability, as selected by the Company by irrevocable notice to the
Administrative Agent not less than (x) with respect to LIBOR Rate Loans denominated in
Dollars, three Business Days prior to the last day of the then current Interest Period with
respect thereto and (y) with respect to LIBOR Rate Loans denominated in Foreign Currency,
four Business Days prior to the last day of the then current Interest Period with respect
thereto;
provided that the foregoing provisions are subject to the following:
(i) if any Interest Period pertaining to a LIBOR Rate Loan would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of the relevant calendar month;
(iii) if the Company shall fail to give notice as provided above, the Company shall be
deemed to have selected (A) in the case of Loans denominated in Dollars, an Alternate Base
Rate Loan to replace the affected LIBOR Rate Loan and (B) in the case of Loans denominated
in Foreign Currencies, an Interest Period of one month;
(iv) no Interest Period in respect of any Loan shall extend beyond the applicable
Maturity Date; and
(v) no more than eight (8) LIBOR Rate Loans may be in effect at any time. For purposes
hereof, LIBOR Rate Loans with different Interest Periods shall be considered as separate
LIBOR Rate Loans, even if they shall begin on the same date, although borrowings, extensions
and conversions may, in accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new LIBOR Rate Loan with a single Interest Period.
Investment shall mean, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other acquisition of Capital
Stock or other securities of another Person, (b) a loan, advance or capital contribution to,
guaranty or assumption of debt of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit.
Issuing Lender shall mean (a) with respect to the Existing Letters of Credit, HSBC,
and (b) with respect to any other Letter of Credit, HSBC or any successor in such capacity.
Issuing Lender Fees shall have the meaning set forth in Section 2.5(c).
Joinder Agreement shall mean, with respect to any new US Guarantor, a Joinder
Agreement substantially in the form of Schedule 5.10.
Lender shall have the meaning set forth in the first paragraph of this Credit
Agreement and shall include the Issuing Lender and the Swingline Lender.
Lender Commitment Letter shall mean, with respect to any Lender, the letter (or
other correspondence) to such Lender from the Administrative Agent notifying such Lender of its LOC
Commitment, Revolving Commitment Percentage and Term Commitment Percentage.
Letter of Credit shall mean (a) any letter of credit issued by the Issuing Lender
pursuant to the terms hereof and (b) any Existing Letters of Credit, in each case as such letter of
credit may be amended, modified, extended, renewed or replaced from time to time.
Letter of Credit Facing Fee shall have the meaning set forth in Section 2.5(c).
Letter of Credit Fee shall have the meaning set forth in Section 2.5(b).
Leverage Ratio shall mean, with respect to the Company and its Subsidiaries on a
consolidated basis for the four consecutive quarters ending on the last day of any fiscal quarter
of the Company, the ratio of (a) Indebtedness of the Company and its Subsidiaries on a consolidated
basis on the last day of such period to (b) Consolidated EBITDA for such four fiscal quarter
period.
LIBOR shall mean, for any Eurocurrency Loan that is a LIBOR Quoted Currency, as set
forth in the definition of Eurocurrency Rate, and for any LIBOR Rate Loan for any Interest Period
therefor for U.S. Dollars, the rate of interest per annum determined by the Administrative Agent
(rounded upward to the nearest 1/100 of 1%) as the London interbank offered rate for U.S. Dollars
for a period equal in length to the relevant Interest Period as administered by ICE Benchmark
Administration (or any other Person that takes over the administration of such rate for the
relevant currency) as displayed on Bloomberg Page BBAM1 (or, in the event such rate does not appear
on such Bloomberg page or screen, on any successor or substitute page on such screen that displays
such rate, or on the appropriate page of such other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion) on the
second full Business Day preceding the first day of such Interest Period, and in an amount
approximately equal to the amount of the LIBOR Rate Loan and for a period approximately equal to
such Interest Period. In the event that no such rate is available to the Administrative Agent,
LIBOR shall be equal to a rate per annum equal to the average rate (rounded upwards, if necessary,
to the next 1/100 of 1%) at which the Administrative Agent determines that U.S. dollars or the
applicable currency in an amount comparable to the amount of the applicable advances are being
offered to prime banks at approximately 11:00 a.m. (London time) on the day which is two (2)
Business Days prior to the first day of such Interest Period for a term comparable to such Interest
Period for settlement in immediately available funds by leading banks in the London interbank
market selected by the Administrative Agent. Notwithstanding the foregoing, if LIBOR shall be less
than zero, such rate shall be deemed zero for purposes of this Agreement.
LIBOR Lending Office shall mean, initially, the office(s) of each Lender designated
as such Lenders LIBOR Lending Office in such Lenders Administrative Details Form; and thereafter,
such other office of such Lender as such Lender may from time to time specify to the Administrative
Agent and the Company as the office of such Lender at which the LIBOR Rate Loans of such Lender are
to be made.
LIBOR Quoted Currency shall mean each of the following currencies: Euros, Swiss
Francs, Pounds Sterling and Japanese Yen, in each case so long as there is a published LIBOR rate
with respect thereto.
LIBOR Rate shall mean a rate per annum (rounded upwards, if necessary, to the next
higher 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:
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LIBOR Rate =
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LIBOR |
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1.00 - Eurodollar Reserve Percentage |
LIBOR Rate Loan shall mean Loans (including Eurocurrency Loans) the rate of interest
applicable to which is based on the LIBOR Rate or the Adjusted LIBO Rate, as applicable.
Lien shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest or any or
other security agreement or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement and any Capital Lease
having substantially the same economic effect as any of the foregoing).
Liquidity shall mean, at any time, the sum of (i) the Dollars reflected in cash or
cash equivalents on the most recently submitted consolidated balance sheet of the Company as
provided in Section 5.1, plus (ii) Accessible Borrowing Availability.
Loan shall mean a Revolving Loan, a Swingline Loan, and/or a Term Loan, as
appropriate.
LOC Commitment shall mean the commitment of the Issuing Lender to issue Letters of
Credit and, with respect to each Lender, the commitment of such Lender to purchase participation
interests in the Letters of Credit up to such Lenders LOC Commitment as specified in the Lender
Commitment Letter or in the Register, as such amount may be reduced from time to time in accordance
with the provisions hereof.
LOC Committed Amount shall have the meaning set forth in Section 2.2(a).
LOC Documents shall mean, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or providing for (a) the rights
and obligations of the parties concerned or (b) any collateral security for such obligations.
LOC Mandatory Borrowing shall have the meaning set forth in Section 2.2(e).
LOC Obligations shall mean, at any time, the sum of (a) the maximum amount which is,
or at any time thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred to in such Letters of
Credit plus (b) the aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
Margin Stock means any margin stock as defined in Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any successor thereto as from now and from time
to time hereinafter in effect.
Material Adverse Effect shall mean a material adverse effect on (a) the business,
operations, property or financial condition of the Company and its Subsidiaries, taken as a whole,
(b) the ability of the Company and its Subsidiaries, taken as a whole, to perform their respective
obligations, when such obligations are required to be performed, under this Credit Agreement or any
other Credit Document or (c) the validity or enforceability of this Credit Agreement or any of the
other Credit Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
Material Contract shall mean any contract, agreement, permit or license, written or
oral, of the Company or any of its Subsidiaries as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
Material Domestic Subsidiary shall mean, as of any date of determination, any direct
or indirect Domestic Subsidiary of the Company (a) that individually generates more than two and
one-half percent (2.5%) of Consolidated Revenues for the period of four consecutive fiscal quarters
ending as of the end of the fiscal quarter immediately preceding such date of determination on a
pro forma basis or (b) that is required to become a US Guarantor pursuant to the terms of Section
5.10.
Materials of Environmental Concern shall mean any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and urea formaldehyde insulation.
Mortgage Instrument shall mean any mortgage, deed of trust, deed to secure debt or
similar agreement or instrument executed by a Credit Party in favor of the Administrative Agent
pursuant to the terms of Section 5.12, as the same may be amended, modified, restated or
supplemented from time to time.
Mortgage Policy shall mean, with respect to any Mortgage Instrument, an ALTA
mortgagee title insurance policy issued by a title insurance company (the Title Insurance
Company) selected by the Administrative Agent in an amount satisfactory to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent.
Multiemployer Plan shall mean a Plan that is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
Non-Defaulting Lender shall mean, at any time, each Lender that is not a Defaulting
Lender at such time.
National Currency Unit shall mean a fraction or multiple of one Euro Unit expressed
in units of the former national currency of a Participating Member State.
Non-Consenting Lender means any Lender that does not approve any consent, waiver or
amendment that (i) requires the approval of all or all affected Lenders in accordance with the
terms of Section 9.1 and (ii) has been approved by the Required Lenders and, in the case of
amendments that require the approval of all or all affected Lenders of a particular Class, Required
Class Lenders of such Class.
Note or Notes shall mean the Revolving Notes, and/or the Swingline Note,
and/or the Term Notes, collectively, separately or individually, as appropriate.
Notice of Borrowing shall mean a written request for a Revolving Loan, a Swingline
Loan or a Term Loan, in each case substantially in the form of Schedule 2.1(c)(i).
Notice of Conversion/Extension shall mean the written notice of conversion of a
LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate Base Rate Loan to a LIBOR Rate Loan,
or extension of a LIBOR Rate Loan, in each case substantially in the form of Schedule 2.10.
OFAC shall have the meaning given in Section 3.28.
Operating Lease shall mean, as applied to any Person, any lease (including, without
limitation, leases which may be terminated by the lessee at any time) of any property (whether
real, personal or mixed) which is not a Capital Lease other than any such lease in which that
Person is the lessor.
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Tax (other than connections arising solely from such Recipient having executed, delivered, become a
party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Credit
Document, or sold or assigned an interest in any Loan or Credit Document).
Other Taxes means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.20).
Participant shall have the meaning set forth in Section 9.6(b).
Participating Member State shall mean each country so described in any EMU
Legislation.
Participation Interest shall mean the purchase by a Revolving Lender of a
participation interest in Letters of Credit as provided in Section 2.2 and in Swingline Loans as
provided in Section 2.3.
Patent License shall mean all agreements, whether written or oral, providing for the
grant by or to a Credit Party of any right to manufacture, use or sell any invention covered by a
Patent, including, without limitation, any thereof referred to in Schedule 3.16.
Patents shall mean (a) all letters patent of the United States or any other country
and all reissues and extensions thereof, including, without limitation, any thereof referred to in
Schedule 3.16, and (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and continuations in part thereof, including,
without limitation, any thereof referred to in Schedule 3.16.
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
Permitted Acquisition shall mean (x) the CLS Acquisition, provided that it is
consummated pursuant to the terms of the CLS Acquisition Agreement and without waiver of any such
terms or conditions (except with the prior written consent of the Administrative Agent), and (y)
any other acquisition or any series of related acquisitions by a Credit Party of (a) the assets or
a majority of the outstanding Voting Stock or economic interests of a Person or (b) any division,
line of business or other business unit of a Person (such Person or such division, line of business
or other business unit of such Person shall be referred to herein as the Target), in each
case with respect to such other acquisition or series of related acquisitions pursuant to clause
(y), that is a type of business (or assets used in a type of business) permitted to be engaged in
by the Credit Parties and their Subsidiaries pursuant to Section 6.3 hereof, so long as (i) no
Default or Event of Default shall then exist or would exist after giving effect thereto, (ii) the
Administrative Agent shall have received written notice of such acquisition at least fifteen (15)
days prior to the consummation of such acquisition, (iii) the Administrative Agent shall have
received a consolidated balance sheet and a consolidated statement of income of the Credit Parties
and their Subsidiaries, giving pro forma effect to such acquisition, that demonstrate to the
reasonable satisfaction of the Administrative Agent, and the Credit Parties shall provide
calculations that demonstrate to the reasonable satisfaction of the Administrative Agent, that,
after giving effect to such acquisition, the Credit Parties shall be in compliance with the
Leverage Ratio set forth in Section 5.9(a) on a Pro Forma Basis (but reduced by 0.25 to 1.00 solely
for the purposes of such calculation of Pro Forma compliance with 5.9(a)), (iv) the Administrative
Agent shall have received any available historical financial statements of the Target (for the 3
fiscal years prior to such acquisition) and such other information with respect to the Target or
such acquisition as may be reasonably required by the Administrative Agent, (v) the Administrative
Agent, on behalf of the Lenders, shall have received (or shall receive in connection with the
closing of such acquisition) a first priority perfected security interest in all property
(including, without limitation, Capital Stock) acquired with respect to the Target to the extent
required by the terms of Sections 5.10 and 5.12 and the Target, if a Person, shall have executed a
Joinder Agreement to the extent required by the terms of Section 5.10, (vi) such acquisition shall
not be a hostile acquisition and shall have been approved by the Board of Directors and/or
shareholders of the applicable Credit Party and the Target. In addition, if any amount of the
consideration paid by the Credit Party to the Target (or its stockholders) consists of cash, then
such acquisition either (A) shall have been approved by the Required Lenders or (B) shall be
subject to the following additional requirements: (i) after giving effect to such acquisition,
Liquidity shall be no less than $20,000,000, and (ii) the total consideration (including cash,
assumed Indebtedness, earnout obligations, deferred compensation and other forms of consideration,
but excluding consideration consisting of Capital Stock of the Company and amounts financed with
the net proceeds of a substantially concurrent issuance of Capital Stock of the Company) for (A)
any single acquisition (or series of related acquisitions) shall not exceed $40,000,000 and (B) all
such acquisitions made during the term of this Credit Agreement shall not exceed $75,000,000 in the
aggregate.
Permitted Investments shall mean:
(a) cash and Corporate Investment Policy Investments;
(b) receivables owing to the Company or any of its Subsidiaries and advances to suppliers, in
each case if created, acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(c) loans and advances to employees (other than officers or directors) in an aggregate amount
not to exceed $250,000 at any time outstanding;
(d) Investments received in connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(e) Investments, acquisitions or transactions permitted under Section 6.4(b);
(f) Hedging Agreements, pooling agreements and cash management agreements to the extent
permitted pursuant to Section 6.1;
(g) Investments in and loans to Credit Parties (other than Foreign Credit Parties);
(h) Investments in and loans to Foreign Subsidiaries (including Foreign Credit Parties) by
Foreign Subsidiaries (including Foreign Credit Parties);
(i) so long as no Default or Event of Default then exists or would exist after giving effect
to any such Investment, (x) Investments in and loans to any Foreign Subsidiary by a US Credit Party
in accordance with the historical practices of the US Credit Parties and (y) other Investments in
and loans to any Foreign Subsidiary by a US Credit Party in an aggregate amount, with respect to
all Foreign Subsidiaries, not to exceed (in the case of clause (y)), when combined (without
duplication) with any outstanding Indebtedness incurred pursuant to clause (ii) of Section 6.1(i),
$10,000,000 at any time outstanding;
(j) Investments and transactions permitted pursuant to Sections 6.1, 6.4 and 9.21 to the
extent not already permitted pursuant to this definition;
(k) additional loan advances and/or Investments; provided that such loans, advances and/or
Investments made pursuant to this clause shall not exceed an aggregate amount of $5,000,000; and
(l) Permitted Acquisitions and all Investments made in connection with the acquisition of such
Permitted Acquisitions.
Permitted Liens shall mean:
(a) Liens created by or otherwise existing, under or in connection with this Credit Agreement
or the other Credit Documents in favor of the Administrative Agent on behalf of the Lenders;
(b) Liens in favor of a Hedging Agreement Provider in connection with any Secured Hedging
Agreement, but only if such Hedging Agreement Provider and the Administrative Agent, on behalf of
the Lenders, shall share pari passu in the collateral subject to such Liens;
(c) Liens securing purchase money Indebtedness and Capital Lease Obligations (and refinancings
thereof) to the extent permitted under Section 6.1(c); provided that (i) any such Lien attaches to
the property securing such Indebtedness or Capital Lease Obligations concurrently with or within 90
days after the acquisition thereof and (ii) such Lien attaches solely to the property so acquired
in such transaction;
(d) Liens for taxes, assessments, charges or other governmental levies not yet due or as to
which the period of grace (not to exceed 90 days), if any, related thereto has not expired or which
are being contested in good faith by appropriate proceedings; provided that adequate reserves with
respect thereto are maintained on the books of any Credit Party or its Subsidiaries, as the case
may be, in conformity with GAAP (or, in the case of Subsidiaries with significant operations
outside of the United States of America, generally accepted accounting principles in effect from
time to time in their respective jurisdictions of incorporation);
(e) carriers, warehousemens, mechanics, materialmens, repairmens or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 90 days
or which are being contested in good faith by appropriate proceedings; provided that a reserve or
other appropriate provision shall have been made therefor and such liens shall have been incurred
in the ordinary course of business and consistent with historical practice of the Company and its
Subsidiaries;
(f) pledges or deposits in connection with workers compensation, unemployment insurance, old
age pensions and other social security legislation and deposits securing liability to insurance
carriers under insurance or self insurance arrangements in the ordinary course of business and
consistent with historical practice of the Company and its Subsidiaries;
(g) deposits to secure the performance of bids, tenders, trade contracts, (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(h) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing clauses; provided that
such extension, renewal or replacement Lien shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced;
(i) Liens existing on the Closing Date and set forth on Schedule 1.1-2; provided that (i) no
such Lien shall at any time be extended to cover property or assets other than the property or
assets subject thereto on the Closing Date and (ii) the principal amount of the Indebtedness
secured by such Liens shall not be increased, extended, renewed, refunded or refinanced;
(j) easements, rights-of-way, zoning restrictions, restrictions on the use of real property,
minor defects or irregularities in title, landlords or lessors liens and other similar
encumbrances not interfering in any material respect with the value or use of the property to which
such encumbrance applies;
(k) Liens on equipment arising from precautionary UCC financing statements or similar
statements under foreign laws relating to the lease of such equipment to the extent permitted by
this Credit Agreement;
(l) Liens arising out of judgments not resulting in an Event of Default;
(m) Liens on (i) the property of a Person existing at the time such Person becomes a
Subsidiary of the Company and (ii) on property or assets existing at the time such property or
assets are acquired by the Company or any of its Subsidiaries, in each case, in a transaction
permitted hereunder securing Indebtedness in an aggregate principal amount not to exceed (x)
$6,000,000 at any time during the period on or before January 31, 2015, and $2,000,000 at any time
thereafter; provided, however, that (A) any such Lien shall secure only those obligations
that it secures on the date such Person becomes a Subsidiary or such property or assets are
acquired, (B) any such Lien may not extend to any other property other than the property subject to
such Lien on the date such Person becomes a Subsidiary or such property or assets are acquired and
(C) any such Lien was not created in anticipation of or in connection with the transaction or
series of transactions pursuant to which such Person became a Subsidiary of the Company or such
property or assets were acquired; and
(n) licenses of Intellectual Property granted in the ordinary course of business.
Person shall mean an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
Plan shall mean, as of any date of determination, any employee benefit plan which is
covered by Title IV of ERISA and in respect of which any Credit Party or a Commonly Controlled
Entity is (or, if such plan were terminated on such date, would under Section 4069 of ERISA be
deemed to be) an employer as defined in Section 3(5) of ERISA.
Platform means Debt Domain, Intralinks, Syndtrak or a substantially similar
electronic transmission system.
Pledge Agreements shall mean, collectively, the US Pledge Agreement and the Foreign
Pledge Agreements.
Prime Rate shall have the meaning set forth in the definition of Alternate Base
Rate.
Pro Forma Basis shall mean, with respect to any transaction, that such transaction
shall be deemed to have occurred as of the first day of the twelve-month period ending as of the
most recent quarter end preceding the date of such transaction.
Properties shall have the meaning set forth in Section 3.10(a).
Purchasing Lenders shall have the meaning set forth in Section 9.6(c).
Qualified ECP Guarantor shall mean, in respect of any Swap Obligation, each Credit
Party that has total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the
relevant security interest becomes or would become effective with respect to such Swap Obligation
or such other person as constitutes an eligible contract participant under the Commodity Exchange
Act or any regulations promulgated thereunder and can cause another person to qualify as an
eligible contract participant at such time by entering into a keepwell under Section
1a(18)(A)(v)(II) of the Commodity Exchange Act.
Recipient shall mean (a) the Administrative Agent, (b) any Lender or (c) any Issuing
Lender, as applicable.
Related Parties means, with respect to any Person, such Persons Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Persons Affiliates.
Recovery Event shall mean theft, loss, physical destruction or damage, taking or
similar event with respect to any property or assets owned by any Credit Party or any of its
Subsidiaries which results in the receipt by the Company or any of its Subsidiaries of any cash
insurance proceeds or condemnation award payable by reason thereof.
Register shall have the meaning set forth in Section 9.6(d).
Reimbursement Obligation shall mean the obligation of the Company to reimburse the
Issuing Lender pursuant to Section 2.2(d) for amounts drawn under Letters of Credit.
Reorganization shall mean, with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization within the meaning of such term as used in Section 4241 of
ERISA.
Reportable Event shall mean any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived under PBGC Reg. §4043.
Required Lenders shall mean, as of any date of determination, two or more Lenders
holding more than fifty percent (50%) of (a) the outstanding Revolving Commitments (including
outstanding Revolving Loans and participations in Letters of Credit and Swingline Loans) and Term
Loans, or (b) if the Revolving Commitments have been terminated, the outstanding Loans and
Participation Interests; provided, however, that if any Lender shall be a Defaulting Lender
at such time, then there shall be excluded from the determination of Required Lenders, Obligations
(including Participation Interests) owing to such Defaulting Lender and such Defaulting Lenders
Commitments.
Requirement of Law shall mean, as to any Person, the certificate of incorporation
and bylaws or other organizational or governing documents of such Person, and each law, treaty,
rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
Responsible Officer shall mean, as to (a) the Company, the President, the Chief
Executive Officer, the Chief Financial Officer and the Treasurer or (b) any other Credit Party, any
duly authorized officer thereof.
Restricted Payment shall mean (a) any dividend or other distribution, direct or
indirect, on account of any shares of any class of Capital Stock of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of
Capital Stock of any Credit Party or any of its Subsidiaries, now or hereafter outstanding, (c) any
payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of Capital Stock of any Credit Party or any of its
Subsidiaries, now or hereafter outstanding, (d) any payment with respect to any earnout obligation,
(e) any prepayment of principal of, premium, if any, or interest on, redemption, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any Subordinated Debt or
(f) any payment of Subordinated Debt in violation of the subordination terms thereof.
Revaluation Date shall mean, with respect to any Extension of Credit, each of the
following: (a) in connection with the origination of any new Extension of Credit, the Business Day
which is the earliest of the date such credit is extended or the date the rate is set; (b) in
connection with any extension or conversion or continuation of an existing Loan, the Business Day
that is the earlier of the date such advance is extended, converted or continued, or the date the
rate is set, as applicable, in connection with any extension, conversion or continuation; (c) each
date a Letter of Credit is issued or renewed pursuant to Section 2.2 or amended in such a way as to
modify the LOC Obligations; (d) the date of any reduction of any of the Revolving Committed Amount
or the LOC Committed Amount pursuant to the terms of Section 2.6, as the case may be; and (e) such
additional dates as the Administrative Agent or the Required Lenders shall deem necessary. For
purposes of determining availability hereunder, the rate of exchange for any Foreign Currency shall
be the Spot Rate.
Revolving Commitment shall mean, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans pursuant to Section 2.1(b) in an
aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite
such Revolving Lenders name on Schedule 2.1(b) under the caption Revolving Commitment,
or opposite such caption in the Assignment Agreement pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Credit Agreement.
Revolving Commitment Percentage shall mean, for each Revolving Lender, the
percentage identified as its Revolving Commitment Percentage in its Lender Commitment Letter or in
the Assignment Agreement pursuant to which such Lender became a Lender hereunder, as such
percentage may be modified in connection with any assignment made in accordance with the provisions
of Section 9.6(c).
Revolving Commitment Termination Date shall mean January 2, 2020.
Revolving Committed Amount shall mean ONE HUNDRED MILLION DOLLARS ($100,000,000), as
such amount may be increased from time to time as provided in Section 2.4 or reduced from time to
time as provided in Section 2.6.
Revolving Credit Maturity Date shall mean the Revolving Commitment Termination Date.
Revolving Lender shall mean, as of any date of determination, a Lender holding a
Revolving Commitment on such date.
Revolving Loans shall have the meaning set forth in Section 2.1.
Revolving Note or Revolving Notes shall mean the promissory notes of the
Borrowers in favor of each of the Revolving Lenders requesting a promissory note evidencing the
Revolving Loans provided pursuant to Section 2.1(f), individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented, extended, renewed or replaced from
time to time.
Sanctions shall have the meaning given in Section 3.28.
Secured Hedging Agreement shall mean any Hedging Agreement between a Credit Party
and a Hedging Agreement Provider to the extent permitted pursuant to Section 6.1, as amended,
modified, supplemented, extended or restated from time to time.
Security Agreement shall mean the Security Agreement dated as of December 21, 2006
given by the Company and the US Guarantors to the Administrative Agent, as amended, modified or
supplemented from time to time in accordance with its terms.
Security Documents shall mean the Security Agreement, the Pledge Agreements, the
Foreign Pledge Documents, the Mortgage Instruments and all other agreements, documents and
instruments relating to, arising out of, or in any way connected with any of the foregoing
documents or granting to the Administrative Agent, Liens or security interests to secure, inter
alia, the Credit Party Obligations whether now or hereafter executed and/or filed, each as may be
amended from time to time in accordance with the terms hereof, executed and delivered in connection
with the granting, attachment and perfection of the Administrative Agents security interests and
liens arising thereunder, including, without limitation, UCC financing statements.
Single Employer Plan shall mean any Plan which is not a Multiemployer Plan.
Specified Representations shall have the meaning set forth in Section 4.1(d).
Spot Rate shall mean, with respect to any Foreign Currency, the rate quoted by HSBC
as the spot rate for the purchase by HSBC of such Foreign Currency with Dollars through its
principal foreign exchange trading office at approximately 11:00 a.m. EST on the date two Business
Days prior to the date as of which the foreign exchange computation is made.
Statutory Reserve Rate means, with respect to any Foreign 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, fees or similar
requirements (including any marginal, special, emergency or supplemental reserves or other
requirements) established by any central bank, monetary authority, the Board, the Financial Conduct
Authority, the Prudential Regulation Authority, the European Central Bank or other Governmental
Authority for any category of deposits or liabilities customarily used to fund loans in the
applicable currency, expressed in the case of each such requirement as a decimal. Such reserve,
liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D of
the Board. Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset, fee or
similar requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under any applicable law, rule or regulation, including
Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in any reserve, liquid asset or similar requirement.
Subordinated Debt shall mean any Indebtedness incurred by any Credit Party which by
its terms is specifically subordinated in right of payment to the prior payment of the Credit Party
Obligations and contains subordination and other terms acceptable to the Required Lenders.
Subsidiary shall mean, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a Subsidiary or to
Subsidiaries in this Credit Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
Swap Obligation shall mean, with respect to any Guarantor, any obligation to pay or
perform under any agreement, contract or transaction that constitutes a swap within the meaning
of Section 1a(47) of the Commodity Exchange Act, including, to the extent applicable, any Secured
Hedging Agreement.
Swingline Commitment shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline
Committed Amount, and the commitment of the Revolving Lenders to purchase participation interests
in the Swingline Loans as provided in Section 2.3(b)(ii), as such amounts may be reduced from time
to time in accordance with the provisions hereof.
Swingline Committed Amount shall mean the amount of the Swingline Lenders Swingline
Commitment as specified in Section 2.3(a).
Swingline Lender shall mean HSBC and any successor in such capacity.
Swingline Loan or Swingline Loans shall have the meaning set forth in
Section 2.3(a).
Swingline Mandatory Borrowing shall have the meaning set forth in Section
2.3(b)(ii).
Swingline Note shall mean the promissory note of the Company in favor of the
Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.3(d), as such
promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to
time.
Target shall have the meaning set forth in the definition of Permitted
Acquisition.
Taxes means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Termination Date shall mean the date upon which all Credit Party Obligations
(excluding any continuing obligations under any Secured Hedging Agreements, pooling agreements or
cash management agreements) have been paid in full in cash (other than indemnification obligations
with respect to which no claim has been asserted, which shall survive the termination of the Credit
Documents), all Commitments have been terminated, and all Letters of Credit have expired undrawn or
been terminated.
Term Commitment means, as to each Term Lender, its obligation to make Term Loans to
the Borrowers pursuant to Section 2.1(a) in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Term Lenders name on Schedule
2.1(a) under the caption Term Commitment or opposite such caption in the Assignment Agreement
pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Credit Agreement. The Term Commitment of all of
the Term Lenders on the Closing Date shall be $35,000,000.
Term Commitment Percentage shall mean, for each Term Lender, the percentage
identified as its Term Commitment Percentage in its Lender Commitment Letter or in the Assignment
Agreement pursuant to which such Lender became a Term Lender hereunder, as such percentage may be
modified in connection with any assignment made in accordance with the provisions of Section
9.6(c).
Term Facility means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of the Term Commitments at such time, and (b) after the funding of the Term Loans pursuant
to Section 2.1(a), the aggregate principal amount of the Term Loans of all Term Lenders outstanding
at such time.
Term Lender means (a) at any time on or prior to the Closing Date, any Lender that
has a Term Commitment at such time, and (b) at any time after the Closing Date, any Lender that
holds Term Loans at such time.
Term Loan means an advance made by any Term Lender under the Term Facility.
Term Loan Maturity Date shall mean January 2, 2020.
Term Note or Term Notes shall mean the promissory notes of the Borrowers
in favor of each of the Term Lenders requesting a promissory note evidencing the Term Loans
provided pursuant to Section 2.1(f), individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended, renewed or replaced from time to
time.
Trademark License shall mean any agreement, written or oral, providing for the grant
by or to a Credit Party of any right to use any Trademark, including, without limitation, any
thereof referred to in Schedule 3.16, but excluding any license of a Trademark to a Credit Party
with respect to a generally available product.
Trademarks shall mean (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade dress and service marks, logos and other
source or business identifiers, and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country or any political subdivision
thereof, or otherwise, including, without limitation, any thereof referred to in Schedule
3.16, and (b) all renewals thereof, including, without limitation, any thereof referred to in
Schedule 3.16.
Tranche shall mean the collective reference to LIBOR Rate Loans whose Interest
Periods begin and end on the same day. A Tranche may sometimes be referred to as a LIBOR
Tranche.
Transfer Effective Date shall have the meaning set forth in each Assignment
Agreement.
Transferee shall have the meaning set forth in Section 9.6(f).
Treaty on European Union shall mean the Treaty of Rome of March 25, 1957, as amended
by the Single European Act 1986 and the Maastricht Treaty (which was signed at Maastricht on
February 1, 1992 and came into force on November 1, 1993), as amended from time to time.
Tuscany shall mean Tuscany Holding AG, a Swiss Aktiengesellschaft.
US Credit Parties shall mean the Company and the US Guarantors.
US Guarantor shall have the meaning set forth in the first paragraph of this Credit
Agreement.
US Guaranty shall mean the guaranty of the US Guarantors set forth in Article X.
US Pledge Agreement shall mean the Pledge Agreement dated as of December 21, 2006
executed in favor of the Administrative Agent by the Company and each of the US Guarantors, as
amended, modified, restated or supplemented from time to time.
Voting Stock shall mean, with respect to any Person, Capital Stock issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.
Withholding Agent means any Credit Party and the Administrative Agent.
Works shall mean all works that are subject to copyright protection pursuant to
Title 17 of the United States Code.
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Section 1.2 Other Definitional Provisions. |
(a) Unless otherwise specified therein, all terms defined in this Credit Agreement
shall have the defined meanings when used in the Credit Documents or any certificate or
other document made or delivered pursuant hereto.
(b) The words hereof, herein and hereunder and words of similar import when used
in this Credit Agreement shall refer to this Credit Agreement as a whole and not to any
particular provision of this Credit Agreement, and Section, subsection, Schedule and Exhibit
references are to this Credit Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
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Section 1.3 Accounting Terms. |
Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with
the most recent audited consolidated financial statements of the Company delivered to the Lenders;
provided that, if the Company shall notify the Administrative Agent that it wishes to amend
the definitions of Consolidated EBITDA, Consolidated Interest Expense or Indebtedness or any
provision in Section 5.9 to eliminate the effect of any change in GAAP on the operation of any such
definition or provision (or if the Administrative Agent notifies the Company that the Required
Lenders wish to amend any such definition or provision for such purpose), then the Companys
compliance with such provisions shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is withdrawn or such
definition or provision is amended in a manner satisfactory to the Company and the Required Lenders
and, provided further that (and notwithstanding anything to the contrary contained herein), unless
the Company gives notice to the Administrative Agent that the Company has elected to proceed in
accordance with the immediately prior provision, the definitions of Consolidated EBITDA,
Consolidated Interest Expense and Indebtedness and all provisions of Section 5.9, to the extent in
each case that they relate to the accounting for leases, shall be calculated and the Companys
compliance with such provisions shall be determined on the basis of GAAP in effect as of the
Closing Date, without giving effect to any subsequent change.
The Company shall deliver to the Administrative Agent and each Lender at the same time as the
delivery of any annual or quarterly financial statements given in accordance with the provisions of
Section 5.1, (i) a description in reasonable detail of any material change in the application of
accounting principles employed in the preparation of such financial statements from those applied
in the most recently preceding quarterly or annual financial statements and (ii) a reasonable
estimate of the effect on the financial statements on account of such changes in application.
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Section 1.4 Resolution of Drafting Ambiguities. |
Each Credit Party acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of this Credit Agreement and the other Credit Documents to which it
is a party, that it and its counsel reviewed and participated in the preparation and negotiation
hereof and thereof and that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation hereof or thereof.
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Section 1.5 Exchange Rates; Currency Equivalents. |
(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date
to be used for calculating the Dollar Amounts of Extensions of Credit and amounts
outstanding hereunder denominated in Foreign Currencies. Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to occur. Except
for purposes of financial statements delivered by the Company hereunder or calculating
financial covenants hereunder or except as otherwise provided herein, the applicable amount
of any currency for purposes of the Credit Documents shall be such Dollar Amount as so
determined by the Administrative Agent.
(b) Wherever in this Credit Agreement in connection with an Extension of Credit,
conversion, continuation or prepayment of a Loan, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Extension of Credit or Loan is
denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency
Equivalent of such Dollar Amount (rounded to the nearest 1,000 units of such Foreign
Currency), as determined by the Administrative Agent.
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Section 1.6 Redenomination of Certain Foreign Currencies and Computation of Dollar
Amounts. |
(a) Each obligation of the Borrowers 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 Credit 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
Extension of Credit in the currency of such member state is outstanding immediately prior to
such date, such replacement shall take effect, with respect to such Extension of Credit, at
the end of the then current Interest Period.
(b) Each provision of this Credit Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time specify to be appropriate
to reflect the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.
(c) References herein to minimum Dollar Amounts and integral multiples stated in Dollars,
where they shall also be applicable to Foreign Currency, shall be deemed to refer to approximate
Foreign Currency Equivalents.
ARTICLE II.
THE LOANS; AMOUNT AND TERMS
(a) Term Loans. Subject only to the funding conditions set forth in Section
4.1 of this Credit Agreement, each Term Lender agrees to make a loan to one or more
Borrowers, as designated by the Company (each such loan, a Term Loan) on the
Closing Date in such Term Lenders applicable Term Commitment Percentage of the Term
Commitment. The Term Commitment shall automatically reduce to $0, and the commitments of
the Term Lenders to make Term Loans shall automatically terminate, concurrently with the
making of the Term Loans on the Closing Date. Term Loans that are repaid or prepaid by
Borrower, in whole or in part, may not be reborrowed. Term Loans may be made in Dollars or
in a Foreign Currency. Term Loans may consist of Alternate Base Rate Loans or LIBOR Rate
Loans, or a combination thereof, as the applicable Borrower may request; provided,
however, the Term Loans may only consist of Alternate Base Rate Loans unless the Borrowers
deliver a Funding Indemnity Letter to the Administrative Agent at least three Business Days
(with respect to Term Loans denominated in Dollars) or four Business Days (with respect to
Term Loans denominated in a Foreign Currency) prior to the Closing Date. Term Loans that
are Foreign Currency Loans shall consist only of LIBOR Rate Loans.
(b) Revolving Commitment. On the Closing Date, subject only to the funding
conditions set forth in Section 4.1 of this Credit Agreement with respect to the Initial
Revolving Loans funded on the Closing Date, and thereafter, during the Commitment Period,
subject to the other terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans in Dollars and in Foreign Currencies (the Revolving
Loans) to one or more Borrowers (as selected by the Company) from time to time in an
aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) equal
to its Revolving Commitment for the purposes hereinafter set forth ; provided,
however, that (i) with regard to each Revolving Lender individually, the sum of the
aggregate principal Dollar Amount of such Revolving Lenders outstanding Revolving Loans
plus such Revolving Lenders Revolving Commitment Percentage of outstanding Swingline Loans
plus such Revolving Lenders Revolving Commitment Percentage of LOC Obligations shall not
exceed such Revolving Lenders Revolving Commitment and (ii) with regard to the Revolving
Lenders collectively, the sum of the aggregate principal Dollar Amount (determined as of the
most recent Revaluation Date) of outstanding Revolving Loans plus outstanding Swingline
Loans plus outstanding LOC Obligations shall not exceed the Revolving Committed Amount then
in effect. Revolving Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or
a combination thereof, as the Company may request, and may be repaid and reborrowed in
accordance with the provisions hereof; provided, however, Revolving Loans made on
the Closing Date or any of the three Business Days following the Closing Date may only
consist of Alternate Base Rate Loans unless the Company delivers a Funding Indemnity Letter
to the Administrative Agent at least three Business Days (with respect to Revolving Loans
denominated in Dollars) or four Business Days (with respect to Revolving Loans denominated
in Foreign Currencies) prior to the Closing Date. Revolving Loans that are Foreign Currency
Loans shall consist only of LIBOR Rate Loans.
(c) Borrowings of Loans.
(i) Notice of Borrowing. The Company shall request a Loan borrowing by
delivering a Notice of Borrowing (or telephone notice promptly confirmed in writing
by delivery of a Notice of Borrowing, which delivery may be by fax) to the
Administrative Agent (A) not later than 11:00 A.M. EST (I) on the Business Day prior
to the date of requested borrowing in the case of Alternate Base Rate Loans and (II)
on the third Business Day prior to the date of the requested borrowing in the case
of LIBOR Rate Loans and (B) not later than 3:00 P.M. (London, England time) four
Business Days prior to the date of the requested borrowing in the case of Foreign
Currency Loans. Each such request for borrowing shall be irrevocable and shall
specify (1) the applicable Borrower, (2) whether such Loan is the Term Loans or, if
after the Closing Date, if a Revolving Loan is requested, (3) the date of the
requested borrowing (which shall be a Business Day), (4) the aggregate principal
amount to be borrowed, (5) the applicable currency in which the Loan is to be
funded, (6) if the Loan is to be made in Dollars, whether the borrowing shall be
comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combination thereof,
(7) if the Loan is to be made in a Foreign Currency, that such Loan shall be
comprised solely of LIBOR Rate Loans and (8) if LIBOR Rate Loans are requested, the
Interest Period(s) therefor. If the Company shall fail to specify in any such
Notice of Borrowing (w) the applicable Borrower, then such notice shall be deemed to
be a request for a Loan to be made to the Company, (x) an applicable Interest Period
in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a request
for an Interest Period of one month, (y) the type of Loan requested in the case of a
Loan to be made in Dollars, then such notice shall be deemed to be a request for an
Alternate Base Rate Loan hereunder or (z) the currency for such Loan, then such Loan
shall be made in Dollars. The Administrative Agent shall give notice to each Term
Lender and/or Revolving Lender, as applicable, promptly upon receipt of each Notice
of Borrowing, the contents thereof and each such Term Lenders and/or Revolving
Lenders share thereof.
(ii) Minimum Amounts. Each Revolving Loan which is an Alternate Base
Rate Loan shall be in a minimum aggregate Dollar Amount (determined as of the most
recent Revaluation Date) of $1,000,000 and in integral multiples of $500,000 in
excess thereof (or the remaining amount of the Revolving Committed Amount, if less).
Each Revolving Loan which is an LIBOR Rate Loan shall be in a minimum aggregate
Dollar Amount (determined as of the most recent Revaluation Date) of $1,000,000 and
in integral multiples of $500,000 in excess thereof (or the remaining amount of the
Revolving Committed Amount, if less).
(iii) Advances. Each Lender will make its Revolving Commitment
Percentage of each Revolving Loan borrowing and/or its Term Commitment Percentage of
the Term Loans, as applicable, available to the Administrative Agent, for the
account of the applicable Borrower, in Dollars or the applicable Foreign Currency
and in funds immediately available to the Administrative Agent, at the
Administrative Agents Office by (A) 1:00 P.M. EST on the date specified in the
applicable Notice of Borrowing in the case of any Loan denominated in Dollars and
(B) the Applicable Time specified by the Administrative Agent in the case of any
Loan that is a Foreign Currency Loan. Such borrowing will then be made available to
the applicable Borrower by the Administrative Agent by crediting the account of the
applicable Borrower on the books of the Administrative Agents Office with the
aggregate of the amounts made available to the Administrative Agent by the Revolving
Lenders and/or the Term Lenders and in like funds as received by the Administrative
Agent.
(iv) Foreign Funding Subsidiaries. Each Lender (a Designating
Lender) shall have the right to designate a Subsidiary or Affiliate (a
Designated Funding Subsidiary) to fund any Loan to any Foreign Borrower;
provided that (i) the Designated Funding Subsidiary shall become a Lender
under this Credit Agreement pursuant to documentation reasonably satisfactory to the
Administrative Agent, (ii) the Designating Lender shall be responsible for funding
its Revolving Commitment Percentage and/or Term Commitment Percentage of any
Revolving Loan and/or Term Loan to such Foreign Borrower to the extent such
Designated Funding Subsidiary fails to fund such Loan, (iii) the Credit Parties, the
Administrative Agent and the Lenders shall continue to deal with the Designating
Lender rather than the Designated Funding Subsidiary for all purposes of this Credit
Agreement, including for purposes of any notification to the Lenders (other than
Notices of Borrowing and Notices of Conversion/Extension, which shall be sent to any
Designated Funding Subsidiary to the extent applicable), (iv) any consent given by
such Designating Lender with respect to any amendment, waiver or other modification
of any term of a Credit Document shall be deemed given on behalf of itself and the
Designated Funding Subsidiary and (v) unless otherwise directed in writing by such
Designating Lender, any payments with respect to a Loan funded by the Designated
Funding Subsidiary shall be made to such Designated Funding Subsidiary.
(d) Reborrowing and Repayment of Revolving Loans. Subject to the terms of this
Credit Agreement, Revolving Loans may be borrowed, repaid and reborrowed during the
Commitment Period. The principal amount of all Revolving Loans shall be due and payable in
full on the Revolving Commitment Termination Date, unless accelerated sooner pursuant to
Section 7.2.
(e) Interest. Subject to the provisions of Section 2.9, Loans shall bear
interest as follows:
(i) Alternate Base Rate Loans. During such periods as Loans shall be
comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall
bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus
the Applicable Percentage, if any; and
(ii) LIBOR Rate Loans. During such periods as Loans shall be comprised
of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to (i) if in U.S. Dollars, the LIBOR Rate plus the Applicable
Percentage for LIBOR Rate Loans, and (ii) if in a Foreign Currency, the Adjusted
LIBO Rate plus the Applicable Percentage for LIBOR Rate Loans.
Interest on Loans shall be payable in arrears on each Interest Payment Date.
(f) Notes; Covenant to Pay.
(i) Each Revolving Lenders Revolving Commitment shall be evidenced, upon such
Revolving Lenders request, by duly executed promissory notes of the Borrowers to
such Revolving Lender in substantially the form of Schedule 2.1(f). The
Borrowers covenant and agree to pay the Revolving Loans in accordance with the terms
of this Credit Agreement and the Revolving Note or Revolving Notes.
(ii) Each Term Lenders Term Loans shall be evidenced, upon such Term Lenders
request, by duly executed promissory notes of the Borrowers to such Term Lender in
substantially the form of Schedule 2.1(f)(ii). The Borrowers covenant and
agree to pay the Term Loans in accordance with the terms of this Credit Agreement
and the Term Note or Term Notes.
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Section 2.2 Letter of Credit Subfacility. |
(a) Issuance. Subject to the terms and conditions hereof and of the LOC Documents, if
any, and any other terms and conditions which the Issuing Lender may reasonably require,
during the Commitment Period the Issuing Lender shall issue, and the Revolving Lenders shall
participate in, Letters of Credit for the account of the Company from time to time upon
request in a form acceptable to the Issuing Lender; provided, however, that (i) the
aggregate Dollar Amount of LOC Obligations shall not at any time exceed TEN MILLION DOLLARS
($10,000,000) (the LOC Committed Amount), (ii) the sum of the aggregate principal
Dollar Amount (determined as of the most recent Revaluation Date) of outstanding Revolving
Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not at any
time exceed the Revolving Committed Amount then in effect, (iii) all Letters of Credit shall
be denominated in Dollars or a Foreign Currency and (iv) Letters of Credit shall be issued
for lawful corporate purposes and may be issued as standby letters of credit, including in
connection with workers compensation and other insurance programs, and trade letters of
credit. Except as otherwise expressly agreed upon by all the Revolving Lenders, no Letter
of Credit shall have an original expiry date more than twelve (12) months from the date of
issuance; provided, however, so long as no Default or Event of Default has occurred
and is continuing and subject to the other terms and conditions to the issuance of Letters
of Credit hereunder, the expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Company or by operation of the terms of
the applicable Letter of Credit to a date not more than twelve (12) months from the date of
extension; provided, further, that no Letter of Credit, as originally issued or as
extended, shall have an expiry date extending beyond the date that is five (5) Business Days
prior to the Revolving Commitment Termination Date. Each Letter of Credit shall comply with
the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be a
Business Day. Any Letters of Credit issued hereunder shall be in a minimum original face
amount acceptable to the Issuing Lender and the Administrative Agent. The Companys
reimbursement obligations in respect of each Existing Letter of Credit, and each Revolving
Lenders participation obligations in connection therewith, shall be governed by the terms
of this Credit Agreement.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted to the Issuing Lender and the Administrative Agent at least five (5)
Business Days prior to the requested date of issuance. Each Issuing Lender will provide to
the Administrative Agent each month and otherwise promptly upon the request of the
Administrative Agent, for dissemination to the Revolving Lenders, a detailed report
specifying the Letters of Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of any prior report, and including
therein, among other things, the account party, the beneficiary, the face amount, expiry
date as well as any payments or expirations which may have occurred. The Issuing Lender
will further provide to the Administrative Agent promptly upon request copies of the Letters
of Credit. The Issuing Lender will provide to the Administrative Agent promptly upon
request a summary report of the nature and extent of LOC Obligations then outstanding.
(c) Participations. Each Revolving Lender, (i) on the Closing Date with
respect to each Existing Letter of Credit and (ii) upon issuance of any other Letter of
Credit, shall be deemed to have purchased without recourse a risk participation from the
Issuing Lender in such Letter of Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal to its Revolving Commitment
Percentage of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the Issuing Lender therefor and discharge when due, its Revolving
Commitment Percentage of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Revolving Lenders participation in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed as required hereunder
or under any LOC Document, each such Revolving Lender shall pay to the Issuing Lender, in
Dollars, the Dollar Amount of its Revolving Commitment Percentage of such unreimbursed
drawing pursuant to and in accordance with the provisions of subsection (d) hereof. The
obligation of each Revolving Lender to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an Event of Default
or any other occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Company to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit, the
Issuing Lender will promptly notify the Company and the Administrative Agent. The Company
shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit (with
the proceeds of a Revolving Loan obtained hereunder or otherwise), in Dollars, in the Dollar
Amount and in same day funds as provided herein or in the LOC Documents. If the Company
shall fail to reimburse the Issuing Lender as provided herein, the unreimbursed amount of
such drawing shall bear interest at a per annum rate equal to the Alternate Base Rate plus
the Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans plus two
percent (2%) for so long as such amount shall be unreimbursed. Unless the Company shall
immediately notify the Issuing Lender and the Administrative Agent of its intent to
otherwise reimburse the Issuing Lender, the Company shall be deemed to have requested a LOC
Mandatory Borrowing, in Dollars, in the Dollar Amount of the drawing as provided in
subsection (e) hereof, the proceeds of which will be used to satisfy the Reimbursement
Obligations. Subject to the terms of Section 2.19, the Companys Reimbursement Obligations
hereunder shall be absolute and unconditional under all circumstances irrespective of any
rights of set off, counterclaim or defense to payment the Company may claim or have against
the Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of
Credit drawn upon or any other Person, including without limitation any defense based on any
failure of the Company to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Issuing Lender will promptly notify the other
Revolving Lenders of the amount of any unreimbursed drawing and each Revolving Lender shall
promptly pay to the Administrative Agent for the account of the Issuing Lender in Dollars
and in immediately available funds, the Dollar Amount of such Revolving Lenders Revolving
Commitment Percentage of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Revolving Lender from the Issuing Lender if such notice is
received at or before 2:00 p.m. EST, otherwise such payment shall be made at or before 12:00
Noon EST on the Business Day next succeeding the day such notice is received. If such
Revolving Lender does not pay such amount to the Issuing Lender in full upon such request,
such Revolving Lender shall, on demand, pay to the Administrative Agent for the account of
the Issuing Lender interest on the unpaid amount during the period from the date of such
drawing until such Revolving Lender pays such amount to the Issuing Lender in full at a rate
per annum equal to, if paid within two (2) Business Days of the date of drawing, the Federal
Funds Effective Rate and thereafter at a rate equal to the Alternate Base Rate. Each
Revolving Lenders obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the termination of this Credit
Agreement or the Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the Credit Party Obligations hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the Company shall have
requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a
Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a
Revolving Loan has been requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate
Base Rate Loans in Dollars (each such borrowing, a LOC Mandatory Borrowing) shall
be made (without giving effect to any termination of the Commitments pursuant to Section
7.2) pro rata based on each Revolving Lenders respective Revolving
Commitment Percentage (determined before giving effect to any termination of the Commitments
pursuant to Section 7.2) and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each Revolving Lender hereby
irrevocably agrees to make such Revolving Loans on the day such notice is received by the
Revolving Lenders from the Administrative Agent if such notice is received at or before 2:00
P.M. EST, otherwise such payment shall be made at or before 12:00 Noon EST on the Business
Day next succeeding the date such notice is received, in each case notwithstanding
(i) the amount of LOC Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default
then exists, (iv) the failure of any such request or deemed request for Revolving Loan to be
made by the time otherwise required in Section 2.1(c), (v) the date of such LOC Mandatory
Borrowing, or (vi) any reduction in the Revolving Committed Amount after any such Letter of
Credit may have been drawn upon. In the event that any LOC Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including, without limitation, as a
result of the occurrence of a Bankruptcy Event), then each such Revolving Lender hereby
agrees that it shall forthwith fund (as of the date the LOC Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the Company on or after
such date and prior to such purchase), in Dollars, the Dollar Amount of its Participation
Interests in the outstanding LOC Obligations; provided, further, that in the event
any Lender shall fail to fund its Participation Interest on the day the LOC Mandatory
Borrowing would otherwise have occurred, then the amount of such Revolving Lenders unfunded
Participation Interest therein shall bear interest payable by such Revolving Lender to the
Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of
such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate
Base Rate.
(f) Modification, Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new Letter of Credit hereunder.
(g) ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Lender and
the Company when a Letter of Credit is issued, (i) the rules of International Standby
Practices 1998, as most recently published by the Institute of International Banking Law &
Practice at the time of issuance, shall apply to each standby Letter of Credit and (ii) the
rules of The Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance, shall apply to
each trade Letter of Credit.
(h) Conflict with LOC Documents. In the event of any conflict between this
Credit Agreement and any LOC Document (including any letter of credit application and any
LOC Documents relating to the Existing Letters of Credit), this Credit Agreement shall
control.
(i) Designation of Subsidiaries as Account Parties. Notwithstanding anything
to the contrary set forth in this Credit Agreement, including without limitation Section
2.2(a), a Letter of Credit issued hereunder may contain a statement to the effect that such
Letter of Credit is issued for the account of a Subsidiary of the Company so long as such
Letter of Credit and the Issuing Lenders issuance thereof complies with all applicable
Requirements of Law; provided that, notwithstanding such statement, the Company
shall be the actual account party for all purposes of this Credit Agreement for such Letter
of Credit and such statement shall not affect the Companys Reimbursement Obligation
hereunder with respect to such Letter of Credit.
(j) Existing Letters of Credit. On the Closing Date, the Existing Letters of
Credit shall automatically, and without any action on the part of any Person, be deemed to
be Letters of Credit issued hereunder, and from and after the Closing Date shall be subject
to and governed by the terms and conditions hereof. In connection therewith, each Revolving
Lender shall automatically, and without any action on the part of any Person, be deemed to
have acquired from the Issuing Lender a participation in each such Existing Letter of Credit
in accordance with Section 2.2(c).
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Section 2.3 Swingline Loan Subfacility. |
(a) Swingline Commitment. During the Commitment Period, subject to the terms
and conditions hereof, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans in Dollars to the Company (each a Swingline Loan
and, collectively, the Swingline Loans) for the purposes hereinafter set forth;
provided, however, (i) the aggregate principal amount of Swingline Loans outstanding
at any time shall not exceed TEN MILLION DOLLARS ($10,000,000) (the Swingline Committed
Amount) and (ii) the sum of the aggregate principal Dollar Amount (determined as of the
most recent Revaluation Date) of outstanding Revolving Loans plus outstanding Swingline
Loans plus outstanding LOC Obligations shall not exceed the Revolving Committed Amount.
Swingline Loans hereunder may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. Upon receiving a Notice of
Borrowing from the Company not later than 12:00 Noon EST on any Business Day
requesting that a Swingline Loan be made, the Swingline Lender will make Swingline
Loans in Dollars available to the Company on the same Business Day such request is
received by the Administrative Agent. Swingline Loan borrowings hereunder shall be
made in minimum amounts of $100,000 and in integral amounts of $100,000 in excess
thereof.
(ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall
be due and payable on the Revolving Commitment Termination Date. The Swingline
Lender may, at any time, in its sole discretion, by written notice to the Company
and the Administrative Agent, demand repayment of its Swingline Loans by way of a
Revolving Loan borrowing, in which case the Company shall be deemed to have
requested a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans
in the amount of such Swingline Loans; provided, however, that, in
the following circumstances, any such deemed request shall also be deemed to have
been given one Business Day prior to each of (i) the Revolving Commitment
Termination Date, (ii) the occurrence of a Bankruptcy Event, (iii) upon acceleration
of the Credit Party Obligations hereunder, whether on account of a Bankruptcy Event
or any other Event of Default, and (iv) the exercise of remedies in accordance with
the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on
account of any such deemed request therefor as provided herein being hereinafter
referred to as Swingline Mandatory Borrowing). Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans promptly upon any such
request or deemed request on account of each Mandatory Swingline Borrowing in the
amount and in the manner specified in the preceding sentence on the date such notice
is received by the Revolving Lenders from the Administrative Agent if such notice is
received at or before 2:00 P.M. EST, otherwise such payment shall be made at or
before 12:00 EST Noon on the Business Day next succeeding the date such notice is
received notwithstanding (I) the amount of Swingline Mandatory Borrowing may
not comply with the minimum amount for borrowings of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in Section 4.2 are then
satisfied, (III) whether a Default or an Event of Default then exists, (IV) failure
of any such request or deemed request for Revolving Loans to be made by the time
otherwise required in Section 2.1(c)(i), (V) the date of such Swingline Mandatory
Borrowing, or (VI) any reduction in the Revolving Committed Amount or termination of
the Revolving Commitments immediately prior to such Swingline Mandatory Borrowing or
contemporaneously therewith. In the event that any Swingline Mandatory Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date the Swingline Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Company on or after such
date and prior to such purchase) from the Swingline Lender such participations in
the outstanding Swingline Loans as shall be necessary to cause each such Revolving
Lender to share in such Swingline Loans ratably based upon its respective Revolving
Commitment Percentage (determined before giving effect to any termination of the
Commitments pursuant to Section 7.2); provided that (A) all interest payable
on the Swingline Loans shall be for the account of the Swingline Lender until the
date as of which the respective participation is purchased, and (B) at the time any
purchase of participations pursuant to this sentence is actually made, the
purchasing Revolving Lender shall be required to pay to the Swingline Lender
interest on the principal amount of such participation purchased for each day from
and including the day upon which the Swingline Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at the
rate equal to, if paid within two (2) Business Days of the date of the Swingline
Mandatory Borrowing, the Federal Funds Effective Rate, and thereafter at a rate
equal to the Alternate Base Rate.
(c) Interest on Swingline Loans. Subject to the provisions of Section 2.9,
Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate
plus the Applicable Percentage, if any, for Revolving Loans that are Alternate Base
Rate Loans. Interest on Swingline Loans shall be payable in arrears on each Interest
Payment Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly executed
promissory note of the Company to the Swingline Lender in the original amount of the
Swingline Committed Amount and substantially in the form of Schedule 2.3(d).
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Section 2.4 Increase in Facility. |
(a) Request for Increase. Provided there exists no Default or Event of
Default, the Company may from time to time, upon notice to the Administrative Agent (who
shall promptly notify the Lenders), request (an Increase Request) (i) one or more
incremental Term Loans and/or (ii) an increase in the Revolving Commitments (each such
incremental Term Loan and/or increase under clause (ii), an Increase or an
Incremental Facility and, collectively, the Incremental Facilities), in
an aggregate amount for all such Incremental Facilities of up to but not exceeding
$65,000.000; provided that (i) any such Increase Request shall be in a minimum
amount of $10,000,000, and (ii) the Company may make a maximum of three such requests. If
the Company delivers an Increase Request, each Lender shall have the option, but not any
obligation, to participate in such Increase Request to the extent of its Revolving
Commitment Percentage and/or Term Commitment Percentage thereof (as applicable) by
delivering a written notice to the Administrative Agent and the Company within ten Business
Days of such Lenders receipt of the Increase Request (it being agreed and understood that
such Lender shall be deemed to have elected not to participate in the Increase Request if it
does not respond to the Increase Request within ten Business Days of its receipt thereof).
Neither the Administrative Agent nor any Lender shall have any obligation or other
commitment to participate in any such increase in the Revolving Commitments or in an
Incremental Facility. If one or more of the Lenders elect not to participate in the
Increase Request, then the Lenders participating in the Increase Request may, at their
option (but without any obligation), elect to participate in such remaining portion of the
Increase Request (with such remaining portion to be allocated ratably among such
participating Lenders based on their respective Revolving Commitment Percentages and/or Term
Commitment Percentages thereof, as applicable, (as such percentages are adjusted to reflect
the absence of the Lenders not participating in such Increase Request so that the total
percentages shall equal 100% of such remaining amount being allocated) or as otherwise may
be agreed by such participating Lenders). To achieve the full amount of an Increase
Request, and subject to the approval of the Administrative Agent, the Swingline Lender and
the Issuing Lender, such approval not to be unreasonably withheld, the Company may invite
other banks, financial institutions and investment funds to join this Credit Agreement as
Lenders hereunder, provided that such other banks, financial institutions and
investment funds shall enter into such joinder agreements to give effect thereto as the
Administrative Agent may reasonably request. The Administrative Agent, the Borrower and the
Lenders participating in such Increase may amend this Credit Agreement or any other Credit
Document solely as may be necessary to reflect the increase in the Revolving Commitment or
the Term Facilities, and the Borrowers will execute replacement Notes for each participating
Lender or new Notes for each new Lender who requests a Note, reflecting the increased amount
of such Lenders share of the Revolving Commitment or such Lenders Term Loans, as
applicable, or, in the case of a new Lender, the amount of such Lenders Revolving
Commitment or Term Loans. The Borrowers agree to execute such amendments and supplements to
the Security Documents as the Administrative Agent reasonably deems necessary in connection
with an Increase Request.
(b) Effective Date and Allocations. If the Revolving Commitments are increased
in accordance with this Section, the Administrative Agent and the Company shall determine
the effective date (the Increase Effective Date) and the final allocation of such
increase and any such allocations shall share ratably from the guarantees and security
interests created by the applicable Security Documents. The Administrative Agent shall
promptly notify the Company and the Lenders of the final allocation of such increase and the
Increase Effective Date.
(c) Conditions to Effectiveness of Increase. It shall be a condition precedent
to any such Increase, that (a) no Default or Event of Default exists or would exist after
giving effect to such Increase, (b) all financial covenants would be satisfied on a pro
forma basis after giving effect to any such Increase, (c) the Administrative Agent consents
to any new Lender (such consent not to be unreasonably withheld), (d) the Swingline Lender
and the Issuing Lender consent to any new Lender participating in the Revolving Credit
Facility, (e) [omitted], (f) such Incremental Facilities will share pari passu in the
Collateral, (g) all fees and expenses owing in respect of such Increase to the
Administrative Agent and the Lenders (other than any Defaulting Lender) shall have been
paid, (h) if such Incremental Facility is a term loan facility, (i) the maturity date
applicable to such Incremental Facility will not be earlier than the Term Loan Maturity
Date, (ii) the weighted average life to maturity of such Incremental Facility will not be
shorter than the weighted average life to maturity of the existing Term Facility and (iii)
all other terms of such Incremental Facility, if not consistent with the terms of the
existing Term Facility, will be as agreed between the Borrowers and the Lenders providing
such Incremental Facility, (i) if such Incremental Facility is a revolving facility, such
Incremental Facility will be documented solely as an increase to the Revolving Commitment,
and (j) the Company shall deliver to the Administrative Agent a certificate of each Credit
Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed
by an authorized officer of such Credit Party (i) certifying and attaching the resolutions
adopted by such Credit Party approving or consenting to such increase, (ii) in the case of
the Company, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article 3 and the other Credit Documents are
true and correct in all material respects on and as of the Increase Effective Date, except
to the extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material respects as of such earlier
date, (B) all financial covenants will be satisfied on a pro forma basis after giving effect
to such Increase, and (C) no Default or Event of Default exists, and (iii) all fees and
expenses of the Administrative Agent owing in respect of such Increase shall have been paid.
(d) Conflicting Provisions. This Section shall supersede any provisions in
Section 9.01 to the contrary.
(a) Commitment Fee. In consideration of the Revolving Commitments, the Company
agrees to pay to the Administrative Agent for the ratable benefit of the Revolving Lenders a
commitment fee (the Commitment Fee) in an amount equal to the Applicable
Percentage per annum on the average daily unused Dollar Amount (determined as of the most
recent Revaluation Date) of the Revolving Committed Amount. For purposes of computation of
the Commitment Fee, LOC Obligations shall be considered usage of the Revolving Committed
Amount but Swingline Loans shall not be considered usage of the Revolving Committed Amount.
The Commitment Fee shall be payable in arrears quarterly on the first Business Day of each
calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC Commitments, the
Company agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving
Lenders, a fee (the Letter of Credit Fee) equal to the Applicable Percentage per
annum then in effect for LIBOR Rate Loans on the average daily maximum amount available to
be drawn under each Letter of Credit from the date of issuance to the date of expiration.
The Letter of Credit Fee shall be payable quarterly in arrears on the first Business Day of
each calendar quarter, and with respect to any Foreign Currency Letters of Credit, payable
in Dollars based on the Spot Rate as of the prior quarter end.
(c) Issuing Lender Fees. In addition to the Letter of Credit Fees payable
pursuant to subsection (b) hereof, the Company shall pay to the Issuing Lender for its own
account without sharing by the other Lenders the reasonable and customary charges from time
to time of the Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, such Letters of Credit (collectively,
the Issuing Lender Fees). The Issuing Lender may charge, and retain for its own
account without sharing by the other Lenders, an additional facing fee (the Letter of
Credit Facing Fee) of one-tenth of one percent (0.10%) per annum on the average daily
maximum amount available to be drawn under each such Letter of Credit issued by it. The
Issuing Lender Fees and the Letter of Credit Facing Fee shall be payable quarterly in
arrears on the first Business Day of each calendar quarter.
(d) Fee Letter.
(i) The Borrowers shall pay to the Administrative Agent and the Arranger for
its own account, in Dollars, fees in the amounts and at the times specified in the
Fee Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
(ii) The Borrowers shall pay to the Lenders, in Dollars, such fees as are
provided in the Fee Letter in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason
whatsoever.
The obligations of the Borrowers to the Administrative Agent and the Lenders pursuant to
this Section shall survive the resignation or removal of the Administrative Agent and the
satisfaction or termination of this Agreement.
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Section 2.6 Commitment Reductions. |
(a) Voluntary Reductions. The Company shall have the right to terminate or
permanently reduce the unused portion of the Revolving Committed Amount at any time or from
time to time upon not less than five Business Days prior notice to the Administrative Agent
(which shall notify the Lenders thereof as soon as practicable) of each such termination or
reduction, which notice shall specify the effective date thereof and the amount of any such
reduction which shall be in a minimum Dollar Amount (determined as of the most recent
Revaluation Date) of $1,000,000 or a whole multiple of $500,000 in excess thereof and shall
be irrevocable and effective upon receipt by the Administrative Agent, provided that
no such reduction or termination shall be permitted if after giving effect thereto, and to
any prepayments of the Loans made on the effective date thereof, the sum of the aggregate
principal Dollar Amount (determined as of the most recent Revaluation Date) of outstanding
Revolving Loans plus outstanding Swingline Loans plus LOC Obligations would exceed the
Revolving Committed Amount.
(b) Swingline Committed Amount. If the Revolving Committed Amount is reduced
pursuant to Section 2.7(c) below the then Swingline Committed Amount, the Swingline
Committed Amount shall automatically be reduced by an amount such that the Swingline
Committed Amount equals the Revolving Committed Amount.
(c) Revolving Commitment Termination Date. The Revolving Commitments, the
Swingline Commitment and the LOC Commitment shall automatically terminate on the Revolving
Commitment Termination Date.
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Section 2.7 Repayment; Prepayments. |
(a) Term Loans. Unless accelerated sooner pursuant to Section 7.2 or required
earlier pursuant to Section 2.7(f), the principal amount of the Term Loans shall be paid,
for the account of each Term Lender according to its Term Commitment Percentage, in the
installments and on the dates set forth below:
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Date
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Installment
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|
|
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|
March 31, 2015
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|
$ |
437,500 |
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|
|
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|
June 30, 2015
|
|
$ |
437,500 |
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|
|
|
|
|
September 30, 2015
|
|
$ |
437,500 |
|
|
|
|
|
|
December 31, 2015
|
|
$ |
437,500 |
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|
|
|
|
|
March 31, 2016
|
|
$ |
1,093,750 |
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|
|
|
|
|
June 30, 2016
|
|
$ |
1,093,750 |
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|
|
|
|
|
September 30, 2016
|
|
$ |
1,093,750 |
|
|
|
|
|
|
December 31, 2016
|
|
$ |
1,093,750 |
|
|
|
|
|
|
March 31, 2017
|
|
$ |
1,312,500 |
|
|
|
|
|
|
June 30, 2017
|
|
$ |
1,312,500 |
|
|
|
|
|
|
September 30, 2017
|
|
$ |
1,312,500 |
|
|
|
|
|
|
December 31, 2017`
|
|
$ |
1,312,500 |
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|
|
|
|
|
March 31, 2018
|
|
$ |
1,750,000 |
|
|
|
|
|
|
June 30, 2018
|
|
$ |
1,750,000 |
|
|
|
|
|
|
September 30, 2018
|
|
$ |
1,750,000 |
|
|
|
|
|
|
December 31, 2018
|
|
$ |
1,750,000 |
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|
|
|
|
|
March 31, 2019
|
|
$ |
1,750,000 |
|
|
|
|
|
|
June 30, 2019
|
|
$ |
1,750,000 |
|
|
|
|
|
|
September 30, 2019
|
|
$ |
1,750,000 |
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|
|
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Term Loan Maturity Date
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The remaining unpaid principal balance of the Term
Loans, if any
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For the avoidance of doubt, the outstanding principal balance of the Term Loans, and all
interest and fees payable thereon, shall be paid in full on the Term Loan Maturity Date.
(b) Revolving Loans. The principal amount of all Revolving Loans, and all
interest and fees payable thereon, shall be due and payable in full on the Revolving
Commitment Termination Date, unless accelerated sooner pursuant to Section 7.2.
(c) Optional Prepayments. The Borrowers shall have the right to prepay Loans
in whole or in part from time to time; provided, however, that each partial
prepayment of a Revolving Loan or a Term Loan shall be in a minimum principal Dollar Amount
(determined as of the most recent Revaluation Date) of $1,000,000 and integral multiples of
$500,000 in excess thereof (or the remaining outstanding principal amount), and each partial
prepayment of a Swingline Loan shall be in a minimum principal Dollar Amount (determined as
of the most recent Revaluation Date) of $100,000 and integral multiples of $100,000 in
excess thereof (or the remaining outstanding principal amount). The Company shall give
three Business Days irrevocable notice in the case of LIBOR Rate Loans and same-day
irrevocable notice on any Business Day in the case of Alternate Base Rate Loans, to the
Administrative Agent (which shall notify the Lenders thereof as soon as practicable). All
prepayments under this Section 2.7(c) shall be subject to Section 2.17, but otherwise
without premium or penalty. Interest on the principal amount prepaid shall be payable on
the next occurring Interest Payment Date that would have occurred had such loan not been
prepaid or, at the request of the Administrative Agent, interest on the principal amount
prepaid shall be payable on any date that a prepayment is made hereunder through the date of
prepayment. Any such optional prepayments under this Section 2.7(c) shall be applied as
directed by the Borrowers. Amounts prepaid on the Revolving Loans and the Swingline Loans
may be reborrowed in accordance with the terms hereof, but amounts prepaid on the Term Loans
may not be reborrowed.
(d) Hedging Obligations Unaffected. Any repayment or prepayment made pursuant
to this Section 2.7 shall not affect the Borrowers obligation to continue to make payments
under any Secured Hedging Agreement, which shall remain in full force and effect
notwithstanding such repayment or prepayment, subject to the terms of such Secured Hedging
Agreement.
(e) Mandatory Prepayments. If at any time, (i) other than as a result of
fluctuations in Foreign Currency exchange rates, the aggregate principal Dollar Amount of
the sum of the Lenders outstanding Revolving Loans, plus the Lenders Revolving Commitment
Percentage of outstanding Swingline Loans, plus the Lenders Revolving Commitment Percentage
of LOC Obligations (calculated, with respect to Revolving Loans and LOC Obligations
denominated in Foreign Currencies, as of the most recent Revaluation Date with respect to
each such Revolving Loan and Letter of Credit) exceeds the Revolving Committed Amount or
(ii) to the extent solely as a result of fluctuations in Foreign Currency exchange rates,
the aggregate principal Dollar Amount of the sum of the Lenders outstanding Revolving
Loans, plus the Lenders Revolving Commitment Percentage of outstanding Swingline Loans,
plus the Lenders Revolving Commitment Percentage of LOC Obligations (so calculated), as of
the most recent Revaluation Date, exceeds one hundred five percent (105%) of all Revolving
Lenders Commitments, then the Company shall, in each case, repay within one (1) Business
Day, Revolving Loans, in an aggregate principal amount sufficient to cause the aggregate
principal Dollar Amount of the sum of the Lenders outstanding Revolving Loans, plus the
Lenders Revolving Commitment Percentage of outstanding Swingline Loans, plus the Lenders
Revolving Commitment Percentage of LOC Obligations (so calculated) to be less than or equal
to the Revolving Committed Amount.
(f) Repayment of Term Loans if CLS Acquisition Fails to Close. In the event
that the CLS Acquisition does not close by January 9, 2015, or such later date as may be
consented to by the Required Lenders, then the Borrowers shall promptly repay to the Lenders
the Term Loans extended on the Closing Date, and in any event, within ten (10) Business Days
of demand therefor by the Agent or the Required Lenders; provided, however, that no Foreign
Borrower shall be obligated to repay any Term Loans extended to a US Credit Party.
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Section 2.8 Lending Offices. |
LIBOR Rate Loans shall be made by each Lender at its LIBOR Lending Office and Alternate Base
Rate Loans at its Domestic Lending Office.
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Section 2.9 Default Rate. |
Upon the occurrence, and during the continuance, of an Event of Default, at the discretion of
the Required Lenders, the principal of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other Credit Documents shall bear interest,
payable on demand, at a per annum rate 2% greater than the rate which would otherwise be applicable
(or, in respect of interest, fees or for other amounts if no rate is applicable, then the Alternate
Base Rate plus the Applicable Percentage, if any, for Alternate Base Rate Revolving Loans plus 2%).
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Section 2.10 Conversion Options. |
(a) The Company may, in the case of Loans, elect from time to time to convert Alternate
Base Rate Loans denominated in Dollars to LIBOR Rate Loans, by delivering a Notice of
Conversion/Extension to the Administrative Agent at least three Business Days prior to the
proposed date of conversion. In addition, the Company may elect from time to time to
convert all or any portion of a LIBOR Rate Loan denominated in Dollars to an Alternate Base
Rate Loan by delivering a Notice of Conversion/Extension to the Administrative Agent by
11:00 A.M. EST three Business Days prior to the proposed date of conversion. If the date
upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a
Business Day, then such conversion shall be made on the next succeeding Business Day and
during the period from such last day of an Interest Period to such succeeding Business Day
such Loan shall bear interest as if it were an Alternate Base Rate Loan. If the Company
shall convert LIBOR Rate Loans to Alternate Base Rate Loans on a date other than the last
day of the applicable Interest Period, then the Company shall pay breakage costs associated
with such conversion as provided in Section 2.17. If the date upon which a LIBOR Rate Loan
is to be converted to an Alternate Base Rate Loan is not a Business Day, then such
conversion shall be made on the next succeeding Business Day and during the period from such
last day of an Interest Period to such succeeding Business Day such Loan shall bear interest
as if it were an Alternate Base Rate Loan. All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing and (ii) partial conversions shall be in an aggregate principal Dollar Amount
(determined as of the most recent Revaluation Date) of $1,000,000 or a whole multiple of
$500,000 in excess thereof. All or any part of outstanding LIBOR Rate Loans may be
converted as provided herein, provided that partial conversions shall be in an
aggregate principal Dollar Amount (determined as of the most recent Revaluation Date) of
$1,000,000 or a whole multiple of $500,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the expiration of an Interest
Period with respect thereto by compliance by the Company with the notice provisions
contained in Section 2.10(a); provided, that no LIBOR Rate Loan may be continued as
such when any Event of Default has occurred and is continuing, in which case such Loan shall
be automatically converted to an Alternate Base Rate Loan denominated in Dollars at the end
of the applicable Interest Period with respect thereto. If the Company shall fail to give
timely notice of an election to continue a LIBOR Rate Loan, or the continuation of LIBOR
Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be automatically
converted to Alternate Base Rate Loans denominated in Dollars at the end of the applicable
Interest Period with respect thereto.
(c) Unless otherwise agreed to by the Required Lenders, upon the occurrence and during
the continuance of any Event of Default, all Foreign Currency Loans then outstanding shall
be redenominated into Dollars (based on the Dollar Amount (determined as of the most recent
Revaluation Date) of such Foreign Currency Loans on the date of redenomination) on the last
day of the then current Interest Periods of such Foreign Currency Loans; provided that in
each case the Company shall be liable for any currency exchange loss related to such
payments and shall promptly pay to each Lender upon receipt of notice thereof by the Company
from such Lender the amount of any such loss incurred by such Lender.
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Section 2.11 Computation of Interest and Fees; Usury. |
(a) Interest payable hereunder with respect to Alternate Base Rate Loans based on the
Prime Rate and Foreign Currency Loans shall be calculated on the basis of a year of 365 days
(or 366 days, as applicable) for the actual days elapsed. All other fees, interest and all
other amounts payable hereunder shall be calculated on the basis of a 360 day year for the
actual days elapsed. The Administrative Agent shall as soon as practicable notify the
Company and the Lenders of each determination of a LIBOR Rate or Adjusted LIBO Rate, as
applicable, on the Business Day of the determination thereof. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as
of the opening of business on the day on which such change in the Alternate Base Rate shall
become effective. The Administrative Agent shall as soon as practicable notify the Company
and the Lenders of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Credit Agreement shall be conclusive and binding on the Borrowers and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of
the Company, deliver to the Company a statement showing the computations used by the
Administrative Agent in determining any interest rate.
(c) It is the intent of the Lenders and the Credit Parties to conform to and contract
in strict compliance with applicable usury law from time to time in effect. All agreements
between the Lenders and the Credit Parties are hereby limited by the provisions of this
subsection which shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of any Credit Party
Obligation), shall the interest taken, reserved, contracted for, charged, or received under
this Credit Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in excess of the
maximum nonusurious amount, any such construction shall be subject to the provisions of this
paragraph and such interest shall be automatically reduced to the maximum nonusurious amount
permitted under applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart from this provision, be in
excess of the maximum nonusurious amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the reduction of the principal
amount owing on the Loans and not to the payment of interest, or refunded to the applicable
Borrower or the other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other Indebtedness evidenced by any of the Credit Documents does not
include the right to receive any interest which has not otherwise accrued on the date of
such demand, and the Lenders do not intend to charge or receive any unearned interest in the
event of such demand. All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or extension)
of the Loans so that the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
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Section 2.12 Pro Rata Treatment and Payments. |
(a) Allocation of Payments Prior to Exercise of Remedies. Each borrowing of
Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata
according to the respective Revolving Commitment Percentages of the Revolving Lenders.
Unless otherwise required by the terms of this Credit Agreement, each payment (other than
prepayments pursuant to Section 2.7) under this Credit Agreement or any Note shall be
applied to such Loans as the Company may elect, or if the Company shall make no such
election, (i) first, to any fees then due and owing by the Company pursuant to
Section 2.5, (ii) second, to interest then due and owing hereunder and under the
Notes of the Borrowers, and, (iii) third, to the outstanding principal of the Term
Loans and/or the Revolving Loans, as the Borrower shall elect and, if no election is made by
the Borrower, to the Revolving Loans and thereafter to the Term Loans in inverse order of
maturity. Each payment on account of any fees pursuant to Section 2.5 shall be made pro
rata in accordance with the respective Revolving Commitment Percentages of the Revolving
Lenders (except as to the Letter of Credit Facing Fee and the Issuing Lender Fees). Each
payment (other than prepayments) by the Borrowers on account of principal of and interest on
the Revolving Loans shall be made pro rata according to the respective amounts due and owing
hereunder in the currency in which such amount is denominated and in such funds as are
customary at the place and time of payment for the settlement of international payments in
such currency. Without limiting the terms of the preceding sentence, accrued interest on
any Loans denominated in a Foreign Currency shall be payable in the same Foreign Currency as
such Loan. Each optional prepayment of the Loans shall be applied in accordance with
Section 2.7(a). Payments made pursuant to Section 2.15 shall be applied in accordance with
such Section. All payments (including prepayments) to be made by the Borrowers on account
of principal, interest and fees shall be made without defense, set off or counterclaim
(except as provided in Section 2.18(c)), shall be made to the Administrative Agent for the
account of the Lenders in immediately available funds at the Administrative Agents Office
and (i) in the case of Loans or other amounts denominated in Dollars, shall be made in
Dollars not later than 12:00 Noon EST on the date when due and (ii) in the case of Loans or
other amounts denominated in a Foreign Currency, unless otherwise specified herein, shall be
made in such Foreign Currency not later than the Applicable Time specified by the
Administrative Agent on the date when due. Any payment received after the foregoing
deadlines shall be deemed received on the next Business Day. The Administrative Agent shall
distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds
as received. If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes
due and payable on a day other than a Business Day, such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension. If any payment on a
LIBOR Rate Loan becomes due and payable on a day other than a Business Day, such payment
date shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. ) If at any time
insufficient funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, interest and fees then due hereunder, such funds shall be applied
in the manner set forth in clauses (i), (ii) and (iii) of this Section 2.12(a) ratably among
the parties entitled thereto in the order specified in clauses (i), (ii) and (iii), and (x)
paying the amounts due pursuant to clause (i) first until all such amounts have been paid in
full, and if the amount received is insufficient to pay such amounts in full, ratably among
the parties entitled thereto, (y) paying the amounts due pursuant to clause (ii) second
until all such amounts have been paid in full, and if the amount received is insufficient to
pay such amounts in full, ratably among the parties entitled thereto, and (z) finally in
accordance with clause (iii) until all such amounts have been paid in full, and if the
amount received is insufficient to pay such amounts in full, ratably among the parties
entitled thereto. In no event shall the Administrative Agent be required in any such
circumstance to pay to the Lenders an amount in excess of the partial amount received from
the Borrowers.
(b) Allocation of Payments After Exercise of Remedies. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the exercise of remedies
(other than the invocation of default interest pursuant to Section 2.9) by the
Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall
automatically terminate and the Loans (with accrued interest thereon) and all other amounts
under the Credit Documents (including without limitation the maximum amount of all
contingent liabilities under Letters of Credit) shall automatically become due and payable
in accordance with the terms of such Section), all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party Obligations or any other
amounts outstanding under any of the Credit Documents or in respect of the Collateral shall
be paid over or delivered as follows (irrespective of whether the following costs, expenses,
fees, interest, premiums, scheduled periodic payments or Credit Party Obligations are
allowed, permitted or recognized as a claim in any proceeding resulting from the occurrence
of a Bankruptcy Event):
FIRST, to the payment of all reasonable out of pocket costs and expenses (including
without limitation reasonable attorneys fees) of the Administrative Agent in connection
with enforcing the rights of the Lenders under the Credit Documents and any protective
advances made by the Administrative Agent with respect to the Collateral under or pursuant
to the terms of the Security Documents;
SECOND, to the payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out of pocket costs and expenses (including
without limitation, reasonable attorneys fees) of each of the Lenders in connection with
enforcing its rights under the Credit Documents or otherwise with respect to the Credit
Party Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued
fees and interest, and including with respect to any Secured Hedging Agreement, any fees,
premiums and scheduled periodic payments due under such Secured Hedging Agreement and any
interest accrued thereon, provided, however, that amounts received from any
Credit Party that is not a Qualified ECP Guarantor shall not be applied to any Excluded Swap
Obligation;
FIFTH, to the payment of the outstanding principal amount of the Credit Party
Obligations and the payment or cash collateralization of the outstanding LOC Obligations,
and including with respect to any Secured Hedging Agreement, any breakage, termination or
other payments due under such Secured Hedging Agreement and any interest accrued thereon;
SIXTH, to all other Credit Party Obligations and other obligations which shall have
become due and payable under the Credit Documents or otherwise and not repaid pursuant to
clauses FIRST through FIFTH above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category; (ii) each of the
Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to clauses THIRD,
FOURTH, FIFTH and SIXTH above; and (iii) to the extent that any amounts available for
distribution pursuant to clause FIFTH above are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (A) first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clauses FIFTH and SIXTH above in the
manner provided in this Section 2.12. Notwithstanding the foregoing terms of this Section 2.12,
neither the Foreign Borrowers nor any other Foreign Credit Party shall be required to repay or
prepay, or to guarantee, nor shall any amount paid by the Foreign Borrowers or any other Foreign
Credit Party be applied to, the Credit Party Obligations of the Company and the US Guarantors.
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Section 2.13 Non Receipt of Funds by the Administrative Agent. |
(a) Unless the Administrative Agent shall have been notified in writing by a Lender
prior to the date a Loan is to be made by such Lender (which notice shall be effective upon
receipt) that such Lender does not intend to make the proceeds of such Loan available to the
Administrative Agent, the Administrative Agent may assume that such Lender has made such
proceeds available to the Administrative Agent on such date, and the Administrative Agent
may in reliance upon such assumption (but shall not be required to) make available to the
Borrowers a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, then the applicable Lender and the Borrowers
severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to a Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of a payment to be made by such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, and (ii) in the case of a payment to be made by
the Borrowers, the interest rate applicable to Alternate Base Rate Loans. If the Borrowers
and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrowers the
amount of such interest paid by the Borrowers for such period. If such Lender pays its
share of the applicable Extension of Credit to the Administrative Agent, then the amount so
paid shall constitute such Lenders Loan included in such borrowing. Any payment by the
Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender
that shall have failed to make such payment to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified in writing by the Company,
prior to the date on which any payment is due from a Borrower hereunder (which notice shall
be effective upon receipt) that the applicable Borrower does not intend to make such
payment, the Administrative Agent may assume that the applicable Borrower has made such
payment when due, and the Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to each Lender and Issuing Lender on such payment
date an amount equal to the portion of such assumed payment to which such Lender is entitled
hereunder. In such event, if the applicable Borrower has not in fact made such payment,
then each of the Lenders or the Issuing Lenders, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Lender, 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 Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.
(c) A certificate of the Administrative Agent submitted to the Company or any Lender
with respect to any amount owing under this Section 2.13 shall be conclusive in the absence
of manifest error.
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Section 2.14 Inability to Determine Interest Rate. |
Notwithstanding any other provision of this Credit Agreement, if (a) the Administrative Agent
shall reasonably determine (which determination shall be conclusive and binding absent manifest
error) that, by reason of circumstances affecting the relevant market, deposits in the relevant
amount in the relevant currency and for the relevant Interest Period are not available in the
relevant market to any Lender or reasonable and adequate means do not exist for ascertaining LIBOR
for such Interest Period, or (b) the Required Lenders shall reasonably determine (which
determination shall be conclusive and binding absent manifest error) that the LIBOR Rate or
Adjusted LIBO Rate, as applicable, does not adequately and fairly reflect the cost to such Lenders
of funding LIBOR Rate Loans that the Company has requested be outstanding as a LIBOR Tranche during
such Interest Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Company, and the Lenders at least two Business Days
prior to the first day of such Interest Period. If such notice is given (i) any affected Foreign
Currency Loans requested to be made on the first day of such Interest Period shall be made, at the
sole option of the applicable Borrower, in Dollars as Alternate Base Rate Loans or such request
shall be cancelled, (ii) any affected LIBOR Rate Loans requested to be made on the first day of
such Interest Period shall be made in Dollars as Alternate Base Rate Loans and (iii) any affected
Loans that were to have been converted on the first day of such Interest Period to or continued as
LIBOR Rate Loans shall be converted to or continued in Dollars as Alternate Base Rate Loans. Until
any such notice has been withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so affected.
(a) Notwithstanding any other provision herein, if (i) the adoption of, or any change
in, any Requirement of Law or in the interpretation or application thereof by the relevant
Governmental Authority after the date of this Credit Agreement shall make it unlawful for
any Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans denominated in
Dollars or in any Foreign Currency as contemplated by this Credit Agreement, or (ii) there
shall have occurred any change after the date of this Credit Agreement 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 unlawful or
impossible for any Lender to make Loans denominated in any Foreign Currency to the
Borrowers, as contemplated by this Credit Agreement (any such affected LIBOR Rate Loans or
Foreign Currency Loans, the Affected Loans), then such Lender shall be an
Affected Lender and by written notice to the Company and to the Administrative Agent:
(i) may declare that Affected Loans will not thereafter (for the duration of
such unlawfulness or impossibility) be made by such Lender hereunder, whereupon any
request for an Affected Loan shall, as to such Lender only (A) if such Affected Loan
is not a Foreign Currency Loan, be deemed a request for an Alternate Base Rate Loan
(unless it should also be illegal for the Affected Lender to provide an Alternate
Base Rate Loan, in which case such Loan shall bear interest at a commensurate rate
to be agreed upon by the Administrative Agent and the Affected Lender, and so long
as no Event of Default shall have occurred and be continuing, the Company), unless
such declaration by the Affected Lender shall be subsequently withdrawn and (B) if
such Affected Loan is a Foreign Currency Loan, be made as an Alternate Base Rate
denominated in Dollars, unless such declaration by the Affected Lender shall be
subsequently withdrawn; and
(ii) may require that all outstanding Affected Loans, as the case may be, made
by it be (A) if such Affected Loans are not Foreign Currency Loans, converted to
Alternate Base Rate Loans, in which event all such Affected Loans shall be
automatically converted to Alternate Base Rate Loans as of the effective date of
such notice as provided in subsection (b) below or (B) if such Affected Loans are
Foreign Currency Loans, converted to Alternate Base Rate Loans denominated in
Dollars, in which event all such Affected Loans shall be converted to Alternate Base
Rate Loans denominated in Dollars as of the effective date of such notice as
provided in subsection (b) below; provided that the applicable Borrower
shall be liable for any currency exchange loss related to such conversion.
In the event any Lender shall exercise its rights under (i) or (ii) above with respect to any
Affected Loans which are not Foreign Currency Loans, all payments and prepayments of principal
which would otherwise have been applied to repay the Affected Loans of such Lender shall instead be
applied to repay the Alternate Base Rate Loans made by such Lender in lieu of, or resulting from
the conversion of, such Affected Loans.
(b) For purposes of this Section 2.15, a notice to the Company by any Lender shall be
effective as to each such Affected Loan, if lawful, on the last day of the Interest Period
currently applicable to such Affected Loan; in all other cases such notice shall be
effective on the date of receipt by the Company.
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Section 2.16 Requirements of Law. |
(a) If any Change in Law shall:
(i) subject such Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and
(C) Connection Income Taxes) whatsoever with respect to any Letter of Credit or any
application relating thereto, any Loan made by it, any Commitment or any other
obligation, or any of its deposits, reserves, other liabilities or capital
attributable thereto, in each case, that is attributable to any of the foregoing,
(ii) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the LIBOR Rate or Adjusted LIBO Rate) or any
Issuing Lender; or
(iii) impose on such Recipient or on the London interbank market any other
condition, cost or expense (other than Taxes) affecting this Credit Agreement or the
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 Recipient of
making, converting to, continuing or maintaining any Loan or of maintaining its obligation
to make any such Loan, or to increase the cost to such Lender, such Issuing Lender or such
other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender, Issuing Lender or other
Recipient hereunder (whether of principal, interest or any other amount) then, upon request
of such Lender, Issuing Lender or other Recipient, the Borrower will pay to such Lender,
Issuing Lender or other Recipient, as the case may be, such additional amount or amounts as
will compensate such Lender, Issuing Lender or other Recipient, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Lender determines that any Change in Law affecting such
Lender or Issuing Lender or any lending office of such Lender or such Lenders or Issuing
Lenders holding company, if any, regarding capital or liquidity requirements, has or would
have the effect of reducing the rate of return on such Lenders or Issuing Lenders capital
or on the capital of such Lenders or Issuing Lenders holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters
of Credit issued by any Issuing Lender, to a level below that which such Lender or Issuing
Lender or such Lenders or Issuing Lenders holding company could have achieved but for such
Change in Law (taking into consideration such Lenders or Issuing Lenders policies and the
policies of such Lenders or Issuing Lenders holding company with respect to capital
adequacy), then from time to time the Borrowers will pay to such Lender or Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such Lender or
Issuing Lender or such Lenders or Issuing Lenders holding company for any such reduction
suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or Issuing
Lender setting forth the amount or amounts necessary to compensate such Lender or Issuing
Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section and delivered to the Company, shall be conclusive absent manifest error. The
Borrowers shall pay such Lender or Issuing Lender, as the case may be, the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lenders or Issuing Lenders right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Lender or Issuing Lender pursuant to this
Section for any increased costs incurred or reductions suffered more than six months prior
to the date that such Lender or Issuing Lender, as the case may be, notifies the Company of
the Change in Law giving rise to such increased costs or reductions, and of such Lenders or
Issuing Lenders intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).
(e) The agreements in this Section 2.16 shall survive the termination of this Credit
Agreement and payment of the Credit Party Obligations.
Each of the Borrowers hereby agree to indemnify each Lender and to hold such Lender harmless
from any funding loss or expense which such Lender may sustain or incur as a consequence of (a)
default by such Borrower in payment of the principal amount of or interest on any Loan by such
Lender in accordance with the terms hereof, (b) default by such Borrower in accepting a borrowing
after such Borrower has given a notice in accordance with the terms hereof, (c) default by such
Borrower in making any prepayment after such Borrower has given a notice in accordance with the
terms hereof, and/or (d) the making by such Borrower of a prepayment of a Loan, or the conversion
thereof, on a day which is not the last day of the Interest Period with respect thereto, in each
case including, but not limited to, any such loss or expense arising from interest or fees payable
by such Lender to lenders of funds obtained by it in order to maintain its Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section submitted by any Lender,
through the Administrative Agent, to the Company (which certificate must be delivered to the
Administrative Agent within thirty days following such default, prepayment or conversion) shall be
conclusive in the absence of manifest error. The agreements in this Section shall survive
termination of this Credit Agreement and payment of the Credit Party Obligations; provided, that
any claim by a Lender for indemnification under this Section 2.17 shall be made no later than 90
days after such Lender becomes aware of such loss or expense.
(a) All payments made by the Credit Parties hereunder or under any Note shall be,
except as provided herein, made free and clear of, and without deduction or withholding for,
any Taxes. If any applicable law (as determined in the good faith discretion of an
applicable Withholding Agent) requires the deduction or withholding of any Tax from any such
payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount of any such Taxes to
the relevant Governmental Authority in accordance with applicable law and, if such Tax is
an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased
as necessary so that after such deduction or withholding has been made (including such
deductions and withholdings applicable to additional sums payable under this Section) the
applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding for Indemnified Taxes been made. The applicable Credit Party will
furnish to the Administrative Agent as soon as practicable after the date of payment of any
Taxes by an applicable Credit Party to a Governmental Authority certified copies (to the
extent reasonably available and required by law) of tax receipts evidencing such payment by
such Credit Party. The applicable Credit Parties agree to jointly and severally indemnify
and hold harmless each Lender, and reimburse such Lender upon its written request, for the
amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) so levied or imposed and paid by such
Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority; provided, however, that in no event shall a Foreign Borrower or
Foreign Guarantor be jointly and severally liable for the obligations hereunder of any US
Credit Party. A reasonably detailed certificate as to the amount of such payment or
liability delivered to the applicable Credit Party or Credit Parties by a Lender (with a
copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error. If the Administrative Agent
is, in respect of any payment in respect of the Loans, required to withhold or deduct any
amount for or on account of any Taxes, the Lender shall give written notice of that fact to
the Administrative Agent as soon as the Lender becomes aware of the requirement to make the
withholding or deduction and shall give to the Administrative Agent such information as the
Administrative Agent shall require to enable it to assess and comply with the requirement.
The Borrowers shall timely pay to the relevant Governmental Authority in accordance with
applicable law, or at the option of the Administrative Agent timely reimburse it for the
payment of, any Other Taxes.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments made under any Credit Document shall deliver to the Borrowers and
the Administrative Agent, at the time or times reasonably requested by the Borrowers or the
Administrative Agent, such properly completed and executed documentation prescribed by
Applicable Law or reasonably requested by the Borrowers or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent,
shall deliver such other documentation prescribed by applicable law or reasonably requested
by the Borrowers or the Administrative Agent as will enable the Borrowers or the
Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Notwithstanding anything to the contrary
in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 2.18(b)(i), (iii) and
(iv), shall not be required if in the Lenders reasonable judgment such completion,
execution or submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such Lender.
Without limiting the generality of the foregoing:
(i) Each Foreign Lender agrees to deliver to the Company and the Administrative
Agent on or prior to the Closing Date, or in the case of a Lender that is an
assignee or transferee of an interest under this Credit Agreement pursuant to
Section 9.6(d) (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such assignment or
transfer to such Lender two accurate and complete original signed copies of (a)
Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (if such Lender is
claiming the benefits of an income tax treaty to which the United States is a party)
establishing an exemption from, or reduction of, U.S. federal withholding Tax, (b)
IRS Form W-8ECI, (c) if such Lender is claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, Internal Revenue Service Form
W-8BEN or W-8BEN-E, as applicable, and a certificate to the effect that such Lender
is not a bank within the meaning of Section 881(c)(3)(A) of the Code, a 10
percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of
the Code, or a controlled foreign corporation described in Section 881(c)(3)(C) of
the Code or (d) IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or
W-8BEN-E, and/or other certification documents from each beneficial owner, as
applicable;
(ii) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrowers and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the reasonable request of the Borrowers or the Administrative Agent), executed
copies of any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by applicable
law to permit the Borrowers or the Administrative Agent to determine the withholding
or deduction required to be made; and
(iii) Each Lender that is a United States person (as such term is defined in
Section 7701(a)(30) of the Code) agrees to deliver to the Company and the
Administrative Agent on or prior to the Closing Date, or in the case of a Lender
that is an assignee or transferee of an interest under this Credit Agreement
pursuant to Section 9.6(d) (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, two accurate and complete original signed
copies of Internal Revenue Service Form W-9 (or successor forms) certifying such
Lender is exempt from United States backup withholding tax.
(iv) If a payment made to a Lender under any Credit Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
shall deliver to the Company and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by the Company or
the Administrative Agent such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Company or the Administrative Agent as may
be necessary for the Company and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with such
Lenders obligations under FATCA or to determine the amount to deduct and withhold
from such payment. Without limiting the foregoing, each Lender agrees to provide to
the Administrative Agent, and consents to the collection and processing by the
Administrative Agent of, any authorisations, waivers, forms, documentation and other
information, relating to its status (or the status of its direct or indirect owners
or holders of any Notes) or otherwise required to be reported, under FATCA (the
FATCA Information). Each Lender further consents to the disclosure,
transfer and reporting of such FATCA Information to any relevant government or
taxing authority, any Affiliate the Administrative Agent, any sub-contractors,
agents, service providers or associates of the Administrative Agent and its
Affiliates, and any person making payments to the Administrative Agent or an
Affiliate of the Administrative Agent, including transfers to jurisdictions which do
not have strict data protection or similar laws, to the extent that the
Administrative Agent reasonably determines that such disclosure, transfer or
reporting is necessary or warranted to facilitate compliance with FATCA. Each
Lender agrees to inform the Administrative Agent promptly, and in any event, within
30 days in writing if there are any changes to the FATCA Information supplied to the
Administrative Agent from time to time. Each Lender warrants that each person whose
FATCA Information it provides (or has provided) to the Administrative Agent has been
notified of and agreed to, and has been given such other information as may be
necessary to permit, the collection, processing, disclosure, transfer and reporting
of their information as set out in this paragraph. In addition, each Lender hereby
covenants with the Administrative Agent that following the receipt of a request from
the Administrative Agent for a determination as to the source and character for U.S.
federal income tax purposes of any payment to be made by it pursuant to this
Agreement, any Note, or under any of the Security Documents to enable the
Administrative Agent to determine whether or not it is obliged, in respect of any
payments to be made by it hereunder or under any Security Document or in respect of
any Note, to make any withholding under FATCA, to use reasonable efforts to make
such determination and to notify the Administrative Agent the outcome of such
determination. Solely for purposes of this clause (iv), FATCA shall include any
amendments made to FATCA after the date of this Agreement.
(v) For purposes of determining withholding Taxes imposed under FATCA, from and
after the effective date of this Agreement, the Borrowers and the Administrative
Agent shall treat (and the Lenders hereby authorize the Administrative Agent to
treat) the Credit Agreement as not qualifying as a grandfathered obligation within
the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(vi) The Administrative Agent shall be entitled to deduct withholding as
required under FATCA and shall have no obligation to gross-up any payment hereunder
or to pay any additional amount as a result of such FATCA withholding.
In addition, each Lender agrees that it will deliver updated versions of the foregoing, as
applicable, whenever the previous certification expires or has become obsolete or inaccurate in any
material respect.
(c) If any Lender requests compensation under Section 2.16, or requires the Borrowers
to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental
Authority for the account of any Lender pursuant to this Section 2.18, then such a Lender
shall, at the request of the Borrowers, 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 judgment
of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.16 or this 2.18, 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 hereby agree to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
(d) If any party determines, in its sole discretion exercised in good faith, that it
has received a refund of any Taxes as to which it has been indemnified pursuant to this
Section 2.18 (including by the payment of additional amounts pursuant to this Section
2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments or additional amounts made under this Section with respect
to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including
Taxes) of such indemnified party and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund). Such indemnifying party, upon
the request of such indemnified party, shall repay to such indemnified party the amount paid
over pursuant to this paragraph (d) (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this paragraph (d), in no event will the indemnified party be required to pay
any amount to an indemnifying party pursuant to this paragraph (d) the payment of which
would place the indemnified party in a less favorable net after-Tax position than the
indemnified party would have been in if the Tax subject to indemnification and giving rise
to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This paragraph
shall not be construed to require any indemnified party to make available its Tax returns
(or any other information relating to its Taxes that it deems confidential) to the
indemnifying party or any other Person.
(e) Each partys obligations under this Section 2.18 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement
of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Credit Document.
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Section 2.19 Indemnification; Nature of Issuing Lenders Duties. |
(a) In addition to its other obligations under Section 2.2, the applicable Borrower
hereby agrees to protect, indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit
on behalf such Borrower or one of its Subsidiaries or (ii) the failure of the Issuing Lender
to honor a drawing under a Letter of Credit issued on behalf of such Borrower or one of its
Subsidiaries as a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental Authority (all such acts or
omissions, herein called Government Acts).
(b) As between the Credit Parties and the Issuing Lender, the Credit Parties shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for
any reason; (iii) for payment to the beneficiary of a Letter of Credit on a drawing by a
beneficiary that substantially (but not strictly) complies with conditions required in order
to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi)
for any loss or delay in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any
consequences arising from causes beyond the control of the Issuing Lender, including,
without limitation, any Government Acts. None of the above shall affect, impair, or prevent
the vesting of the Issuing Lenders rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related certificates, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not put such Issuing Lender under
any resulting liability to the Credit Parties. It is the intention of the parties that this
Credit Agreement shall be construed and applied to protect and indemnify the Issuing Lender
against any and all risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Credit Parties, including, without limitation, any and all
risks of the acts or omissions, whether rightful or wrongful, of any Government Authority.
The Issuing Lender shall not, in any way, be liable for any failure by the Issuing Lender or
anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lender.
(d) Except as provided in subsection (e) below, nothing in this Section 2.19 is
intended to limit the Reimbursement Obligation of the Company contained in Section 2.2(d)
hereof. The obligations of the Credit Parties under this Section 2.19 shall survive the
termination of this Credit Agreement. No act or omissions of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this Section 2.19 the Credit
Parties shall have no obligation to indemnify the Issuing Lender in respect of any liability
incurred by the Issuing Lender arising out of the gross negligence or willful misconduct of
the Issuing Lender (including action not taken by the Issuing Lender), as determined by a
court of competent jurisdiction.
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Section 2.20 Replacement of Lenders. |
If any Lender has given notice under Section 2.15 or requests compensation under Section 2.16,
or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.18 and, in each
case, such Lender has declined or is unable to designate a different lending office in accordance
with Section 2.18(c), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the
Borrower 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, and consents required by, Section 9.6), all of its interests,
rights (other than its existing rights to payments pursuant to Section 2.16 or Section 2.18) and
obligations under this Agreement and the related Credit Documents to an assignee eligible to become
an assignee pursuant to Section 9.6 that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that:
(i) the Borrowers shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 9.06;
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in L/C Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Credit Documents (including any amounts under Section 2.17(d)) 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);
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.16 or payments required to be made pursuant to
Section 2.18, such assignment will result in a reduction in such compensation or
payments thereafter;
(iv) such assignment does not conflict with applicable law; and
(v) in the case of any assignment resulting from a Lender becoming a
Non-Consenting Lender, the applicable assignee shall have consented to the
applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
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Section 2.21 Obligations of Borrowers. |
Notwithstanding anything in this Credit Agreement or in the other Credit Documents to the
contrary (including, without limitation, Section 2.7, Section 2.12, Article X and, except as set
forth below in this paragraph, Article XI), the parties hereto acknowledge and agree that (a) each
of the Borrowers, in its capacity as a Borrower hereunder, is not jointly and severally liable for
the Credit Party Obligations of the other Borrower; provided that it is acknowledged and
agreed that (i) the Company has guaranteed the Credit Party Obligations of the Foreign Borrowers
pursuant to Article XI and that the Foreign Borrowers have not guaranteed the Credit Party
Obligations of the Company and (ii) to the extent provided in, and subject to the terms and
conditions of, Section 11.10, each Foreign Borrower is jointly and severally liable for the Credit
Party Obligations of each other Foreign Borrower, and (b) neither the Foreign Borrowers nor any
other Foreign Credit Party shall be required to repay or prepay, or to guarantee, nor shall any
amount paid by any Foreign Borrower or any other Foreign Credit Party be applied to, any Credit
Party Obligations of the Company and the US Guarantors.
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Section 2.22 Defaulting Lender. |
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Credit Agreement, if any Lender becomes a Defaulting Lender, then, until
such time as such Lender is no longer a Defaulting Lender, to the extent permitted by
applicable law:
(i) Waivers and Amendments. Such Defaulting Lenders right to approve
or disapprove any amendment, waiver or consent with respect to this Credit Agreement
shall be restricted as set forth in the definition of Required Lenders.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest,
fees or other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article
VII or otherwise) or received by the Administrative Agent from a Defaulting Lender
pursuant to Section 9.7 shall be applied at such time or times as may be determined
by the Administrative Agent as follows: FIRST, to the payment of any amounts owing
by such Defaulting Lender to the Administrative Agent hereunder; SECOND, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to any
Issuing Lender or Swingline Lender hereunder; THIRD, to cash collateralize the
Issuing Lenders Fronting Exposure with respect to such Defaulting Lender; FOURTH,
as the Borrower may request (so long as no Default or Event of Default exists), to
the funding of any Loan in respect of which such Defaulting Lender has failed to
fund its portion thereof as required by this Credit Agreement, as determined by the
Administrative Agent; FIFTH, if so determined by the Administrative Agent and the
Borrower, to be held in a deposit account and released pro rata in order to (x)
satisfy such Defaulting Lenders potential future funding obligations with respect
to Loans under this Credit Agreement and (y) cash collateralize the Issuing Lenders
future Fronting Exposure with respect to such Defaulting Lender with respect to
future Letters of Credit issued under this Credit Agreement; SIXTH, to the payment
of any amounts owing to the Lenders, the Issuing Lenders or Swingline Lender as a
result of any judgment of a court of competent jurisdiction obtained by any Lender,
the Issuing Lender or Swingline Lender against such Defaulting Lender as a result of
such Defaulting Lenders breach of its obligations under this Credit Agreement;
SEVENTH, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against such
Defaulting Lender as a result of such Defaulting Lenders breach of its obligations
under this Credit Agreement; and EIGHTH, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such Loans
were made or the related Letters of Credit were issued at a time when the conditions
set forth in Section 4.2 were satisfied or waived, such payment shall be applied
solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of such Defaulting Lender, until such time
as all Loans and funded and unfunded participations in LOC Obligations and Swingline
Loans are held by the Lenders pro rata in accordance with the Commitments under the
applicable facility without giving effect to Section 2.22(a)(iv). Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied
(or held) to pay amounts owed by a Defaulting Lender or to post cash collateral
pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any Commitment
Fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have
been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive a Letter of
Credit Fee for any period during which that Lender is a Defaulting Lender
only to the extent allocable to its Commitment Percentage of the stated
amount of Letters of Credit for which it has provided cash collateral.
(C) With respect to any Commitment Fee or Letter of Credit Fee not
required to be paid to any Defaulting Lender pursuant to clause (A) or (B)
above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion
of any such fee otherwise payable to such Defaulting Lender with respect to
such Defaulting Lenders participation in LOC Obligations or Swingline Loans
that has been reallocated to such Non-Defaulting Lender pursuant to clause
(iv) below, (y) pay to each Issuing Lender and Swingline Lender, as
applicable, the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to such Issuing Lenders or Swingline
Lenders Fronting Exposure to such Defaulting Lender, and (z) not be
required to pay the remaining amount of any such fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All
or any part of such Defaulting Lenders participation in LOC Obligations and
Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance
with their respective Commitment Percentages (calculated without regard to such
Defaulting Lenders Commitment) but only to the extent that (x) the conditions set
forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the
Company shall have otherwise notified the Administrative Agent at such time, the
Company shall be deemed to have represented and warranted that such conditions is
satisfied at such time) provided that, on any date thereafter during such period, to
the extent that such conditions set forth in Section 4.2 are satisfied, such
reallocation shall occur at such later date, and (y) such reallocation does not
cause the sum of the aggregate principal Dollar Amount of such Non-Defaulting
Lenders outstanding Revolving Loans plus such Lenders Revolving Commitment
Percentage of outstanding Swingline Loans plus such Lenders Revolving Commitment
Percentage of LOC Obligations to exceed such Non-Defaulting Lenders Revolving
Commitment. No reallocation hereunder shall constitute a waiver or release of any
claim of any party hereunder against a Defaulting Lender arising from that Lender
having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as
a result of such Non-Defaulting Lenders increased exposure following such
reallocation.
(v) Cash Collateral, Repayment of Swingline Loans. If the reallocation
described in clause (iv) above cannot, or can only partially, be effected, the
Company shall, without prejudice to any right or remedy available to it hereunder or
under law, within one Business Day following the written request of the
Administrative Agent or any Issuing Lender (with a copy to the Administrative Agent)
(x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders
Fronting Exposure and (y) second, cash collateralize the Issuing Lenders Fronting
Exposure.
(vi) Grant of Security Interest. The Company, and to the extent
provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the
Administrative Agent, for the benefit of the Issuing Lenders, and agrees to
maintain, a first priority security interest in all such cash collateral as security
for the Defaulting Lenders obligation to fund participations in respect of LOC
Obligations, to be applied pursuant to clause (vii) below. If at any time the
Administrative Agent determines that such cash collateral is subject to any right or
claim of any Person other than the Administrative Agent and the Issuing Lenders as
herein provided, or that the total amount of such cash collateral is less than the
amount under clause (iv) above, the Company will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional cash
collateral in an amount sufficient to eliminate such deficiency (after giving effect
to any cash collateral provided by the Defaulting Lender).
(vii) Application. Notwithstanding anything to the contrary contained
in this Agreement, cash collateral provided under this Section in respect of Letters
of Credit shall be applied to the satisfaction of the Defaulting Lenders obligation
to fund participations in respect of LOC Obligations (including, as to cash
collateral provided by a Defaulting Lender, any interest accrued on such obligation)
for which the cash collateral was so provided, prior to any other application of
such property as may otherwise be provided for herein.
(viii) Termination of Requirement. Cash collateral (or the appropriate
portion thereof) provided to reduce any Issuing Lenders Fronting Exposure shall no
longer be required to be held as cash collateral pursuant to this Section following
(i) the elimination of the applicable Fronting Exposure (including by the
termination of Defaulting Lender status of the applicable Lender), or (ii) the
determination by the Administrative Agent and each Issuing Lender that there exists
excess cash collateral; provided that, subject to this Section 2.22, the
Person providing cash collateral and each Issuing Lender may agree that cash
collateral shall be held to support future anticipated Fronting Exposure or other
obligations, and provided further that to the extent that such cash
collateral was provided by the Company, such cash collateral shall remain subject to
the security interest granted pursuant to the Credit Documents.
(b) Defaulting Lender Cure. If the Company, the Administrative Agent, the
Swingline Lender and each Issuing Lender agree in writing that a Lender is no longer a
Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as
of the effective date specified in such notice and subject to any conditions set forth
therein (which may include arrangements with respect to any cash collateral), that Lender
will, to the extent applicable, purchase at par that portion of outstanding Loans of the
other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Loans and funded and unfunded participations in Letters of Credit and
Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving
Commitments (without giving effect to Section 2.22(a)(iv)), whereupon such Lender will cease
to be a Defaulting Lender; provided that no adjustments will be made retroactively
with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim
of any party hereunder arising from that Lenders having been a Defaulting Lender.
(c) New Swingline Loans/Letters of Credit. So long as any Lender is a
Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline
Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to
such Swingline Loan and (ii) no Issuing Lender shall be required to issue, extend, renew or
increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure
after giving effect thereto.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make the Extensions of Credit
herein provided for, the Credit Parties hereby represent and warrant to the Administrative Agent
and to each Lender that:
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Section 3.1 Financial Condition. |
Company Financial Statements. The Company has delivered to the Administrative Agent
and the Lenders (a) balance sheets and the related statements of income and of cash flows of the
Company and its Subsidiaries for the fiscal year ended December 31, 2013, audited by a nationally
recognized independent accounting firm, (b) company-prepared unaudited monthly balance sheets and
the related statements of income and cash flows of the Company and its Subsidiaries as of, and for
the period ending September 30, 2014, (c) a company-prepared pro forma balance sheet of the Company
and its Subsidiaries as of September 30, 2014, giving effect to the making of the Loans on the
Closing Date and the consummation of the CLS Acquisition and (d) three-year projected financial
statements (including balance sheets and statements of income and cash flow) of the Company and its
Subsidiaries (including CLS and its Subsidiaries) prepared on an annual basis, all in form and
substance satisfactory to the Administrative Agent and certified by the chief financial officer of
the Company that (i) with respect to the audited and unaudited financial statements, they fairly
present the financial condition of the Company and its Subsidiaries as of the dates indicated, (ii)
with respect to the audited and unaudited financial statements, they fairly present the results of
their operations and their cash flows for the periods indicated, subject to changes resulting from
audit and normal year end adjustments and (ii) with respect to the pro forma balance sheet and the
projections, were prepared in good faith based upon reasonable assumptions.
Since December 31, 2013, there has been no development or event which, individually or in the
aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
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Section 3.3 Corporate Existence; Compliance with Law. |
Each of the Credit Parties (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization (to the extent applicable under such laws), (b)
has the requisite power and authority and the legal right to own and operate all its property, to
lease the property it operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified to conduct business and in good standing (to the extent applicable)
under the laws of (i) the jurisdiction of its organization, (ii) the jurisdiction where its chief
executive office is located and (iii) each other jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification except to the
extent that the failure to so qualify or be in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the business or operations
of the Credit Parties and their Subsidiaries in such jurisdiction, (d) is in compliance with all
Requirements of Law, government permits and government licenses except to the extent that the
failure to comply therewith could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The jurisdictions in which the Credit Parties and the CLS Parties
as of the Closing Date are organized and qualified to do business are described on Schedule
3.3. The execution, delivery and performance by the Credit Parties of this Agreement, the
other Credit Documents and the CLS Acquisition Agreement and the consummation of the transactions
contemplated thereby does not (i) conflict with the Certificate of Incorporation, by-laws or other
governing corporate or entity documents of any applicable Credit Party or (ii) any material
applicable law, regulation, court order or other order or requirement of any Governmental Authority
applicable to any Credit Party.
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Section 3.4 Corporate Power; Authorization; Enforceable Obligations. |
Each of the Credit Parties has full power and authority and the legal right to make, deliver
and perform the Credit Documents to which it is party and has taken all necessary limited liability
company or corporate action to authorize the execution, delivery and performance by it of the
Credit Documents to which it is party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery or performance of any
Credit Document by the Credit Parties (other than those that have been obtained) or with the
validity or enforceability of any Credit Document against the Credit Parties (except such filings
as are necessary in connection with the perfection of the Liens created by such Credit Documents).
Each Credit Document to which it is a party has been duly executed and delivered on behalf of each
Credit Party. Each Credit Document to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law).
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Section 3.5 No Legal Bar; No Default. |
The execution, delivery and performance of the Credit Documents, the borrowings thereunder and
the use of the proceeds of the Loans will not violate any material Requirement of Law or any
material Contractual Obligation of any Credit Party or CLS Parties (after giving effect to the CLS
Acquisition) (except those as to which waivers or consents have been obtained), and will not result
in, or require, the creation or imposition of any Lien on any Credit Partys properties or revenues
pursuant to any Requirement of Law or Contractual Obligation other than the Liens arising under or
contemplated in connection with the Credit Documents. No Credit Party is in default under or with
respect to any of its Contractual Obligations to the extent such default could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
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Section 3.6 No Material Litigation. |
No litigation, investigation, claim, criminal prosecution, civil investigative demand,
imposition of criminal or civil fines and penalties, or any other proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of the Credit Parties,
threatened by or against any Credit Party or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to the Credit Documents or any Loan or any of
the transactions contemplated hereby, or (b) which would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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Section 3.7 Investment Company Act. |
No Credit Party is an investment company, or a company controlled by an investment
company, within the meaning of the Investment Company Act of 1940, as amended. No Credit Party is
a subject to regulation under the Federal Power Act, the Interstate Commerce Act, or any federal or
state statute or regulation limiting its ability to incur the Credit Party Obligations.
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Section 3.8 Margin Regulations. |
No part of the proceeds of any Extension of Credit hereunder will be used directly or
indirectly for any purpose that violates, or that would be inconsistent with, the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System as now and from time
to time hereafter in effect. The Credit Parties and their Subsidiaries are not engaged,
principally or as one of their important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock within the respective meanings of each of such
terms under Regulation U. The Credit Parties and their Subsidiaries shall not engage in any
activities, including the purchase of Margin Stock, which would result in a violation of Regulation
U. If the Company owns Margin Stock at any time, it will nevertheless comply with this Section
3.8.
Neither a Reportable Event nor an accumulated funding deficiency (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the five year period prior to
the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such five year period.
The present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither any Credit Party nor any Commonly Controlled
Entity is currently subject to any liability for a complete or partial withdrawal from a
Multiemployer Plan.
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Section 3.10 Environmental Matters. |
Except for matters that could not be reasonably expected, either individually or in the
aggregate, to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by the Credit Parties or
any of their Subsidiaries (the Properties) do not contain any Materials of
Environmental Concern in amounts or concentrations which (i) constitute a violation of, or
(ii) could give rise to liability under, any Environmental Law.
(b) The Properties and all operations of the Credit Parties and/or their Subsidiaries
at the Properties are in compliance, and have in the last five years been in compliance,
with all applicable Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties or the
business operated by the Credit Parties or any of their Subsidiaries (the
Business).
(c) Neither the Credit Parties nor their Subsidiaries have received any written or
actual notice of violation, alleged violation, non compliance, liability or potential
liability with respect to environmental matters or Environmental Laws regarding any of the
Properties or the Business, nor does the Credit Parties and their Subsidiaries have
knowledge or reason to believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or disposed of from
the Properties in violation of, or in a manner or to a location that could give rise to
liability under any Environmental Law, and no Materials of Environmental Concern have been
generated, treated, stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Credit Parties and their Subsidiaries, threatened, under any
Environmental Law to which any Credit Party or any Subsidiary is or will be named as a party
with respect to the Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to the Properties
or the Business.
(f) There has been no release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations of any
Credit Party or any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
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Section 3.11 Purpose of Loans. |
The proceeds of the Extensions of Credit shall be used by the Borrowers solely (a) for the CLS
Acquisition, (b) for other Permitted Acquisitions, (c) to refinance certain existing Indebtedness
of the Credit Parties, (d) to pay any fees and expenses in connection with the Credit Agreement,
(e) to repurchase Capital Stock of the Company to the extent permitted by Section 6.10 and (e) to
provide for the working capital and general corporate or limited liability company requirements of
the Borrowers and their Subsidiaries (including capital expenditures). Without limiting the
preceding sentence, the proceeds of the Term Loans and of the Revolving Loans made on the Closing
Date shall be used solely for the purposes identified in clauses (a), (c) and (d) of the preceding
sentence.
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Section 3.12 Subsidiaries. |
Set forth on Schedule 3.12 is a complete and accurate list in all material respects,
as of the Closing Date or the date Schedule 3.12 was last updated in accordance with the
terms of Section 5.2(b), as applicable, of all Subsidiaries of the Credit Parties (and CLS and
Tuscany after giving effect to the CLS Acquisition). Information on the attached Schedule includes
the following: (a) the number of shares of each class of Capital Stock or other equity interests
outstanding of all Subsidiaries of the Credit Parties (including without limitation CLS and Tuscany
after giving effect to the CLS Acquisition); (b) the number and percentage of outstanding shares of
each class of Capital Stock owned by the Company or any of its Subsidiaries (including without
limitation CLS and Tuscany after giving effect to the CLS Acquisition); and (c) the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and
similar rights of all Subsidiaries of the Credit Parties (including without limitation CLS and
Tuscany after giving effect to the CLS Acquisition). The outstanding Capital Stock and other
equity interests of all such Subsidiaries is validly issued, fully paid and non assessable and is
owned free and clear of all Liens (other than those arising under or contemplated in connection
with the Credit Documents). The Company may update Schedule 3.12 from time to time by
providing a replacement Schedule 3.12 to the Administrative Agent.
Each of the Credit Parties and its Subsidiaries (including without limitation the CLS Parties
at such time as they become Subsidiaries) has good and marketable title to all of its material
assets, or if any material Property is leased by such Credit Party or any of its Subsidiaries
(including without limitation the CLS Parties after giving effect to the CLS Acquisition), such
Person has a valid leasehold interest enforceable against the lessor of such material Property in
accordance with the terms of such lease, and none of such material assets is subject to any Lien
other than Permitted Liens.
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Section 3.14 Indebtedness. |
Except as otherwise permitted under Section 6.1, the Credit Parties and their Subsidiaries
(including without limitation the CLS Parties after giving effect to the CLS Acquisition) have no
Indebtedness.
Each of the Credit Parties and their Subsidiaries (including without limitation the CLS
Parties after giving effect to the CLS Acquisition) has filed, or caused to be filed, all material
tax returns (federal, state, local and foreign) required to be filed and paid (a) all material
amounts of taxes shown thereon to be due (including interest and penalties) and (b) all other
material taxes, fees, assessments and other governmental charges (including mortgage recording
taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes (i) that
are not yet delinquent or (ii) that are being contested in good faith and by proper proceedings,
and against which adequate reserves are being maintained in accordance with GAAP. None of the
Credit Parties and their Subsidiaries is aware as of the Closing Date of any proposed material tax
fine or penalty against it or any of its Subsidiaries (including without limitation the CLS Parties
after giving effect to the CLS Acquisition).
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Section 3.16 Intellectual Property. |
Each of the Credit Parties and their Subsidiaries (including without limitation the CLS
Parties after giving effect to the CLS Acquisition) owns, or has the legal right to use, all
Intellectual Property, tradenames, technology, know how and processes necessary for each of them to
conduct its business as currently conducted in all material respects. Set forth on Schedule
3.16 is a list, as of the Closing Date or the date Schedule 3.16 was last updated in
accordance with the terms of Section 5.2(b), as applicable, of all registered Intellectual Property
owned by each of the Credit Parties and their Subsidiaries (including without limitation the CLS
Parties after giving effect to the CLS Acquisition) or with respect to which a Credit Party or any
of its Subsidiaries (including without limitation the CLS Parties) has been granted a license.
Except as provided on Schedule 3.16, as of the Closing Date or the date Schedule
3.16 was last updated in accordance with the terms of Section 5.2(b), as applicable, no claim
that could reasonably be expected to have a Material Adverse Effect has been asserted and is
pending by any Person challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor do the Credit Parties or any of
their Subsidiaries know of any such material claim, and, to the knowledge of the Credit Parties and
their Subsidiaries, the use of such Intellectual Property by the Credit Parties or any of their
Subsidiaries (including without limitation the CLS Parties) does not infringe on the rights of any
Person to the extent that such use could reasonably be expected to have a Material Adverse Effect.
The fair saleable value of the assets of the Company and of the Company and its Subsidiaries
(including without limitation the CLS Parties after giving effect to the CLS Acquisition) taken as
a whole, measured on a going concern basis, exceeds all probable liabilities of the Company and the
Company and its Subsidiaries taken as a whole, including, on a pro forma basis, the borrowing of
the Loans to be borrowed on the Closing Date, the closing of the CLS Acquisition, and any other
transactions to be incurred pursuant to this Credit Agreement. Each of the Company, each Foreign
Borrower and each Guarantor (a) does not have unreasonably small capital in relation to the
business in which it is or proposes to be engaged or (b) has not incurred, or believes that it will
incur after giving effect to the transactions contemplated by this Credit Agreement, debts beyond
its ability to pay such debts as they become due. The Credit Parties taken as a whole (including
without limitation the CLS Parties after giving effect to the CLS Acquisition) (i) do not have
unreasonably small capital in relation to the business in which they are or propose to be engaged
or (ii) have not incurred, or believe that they will incur after giving effect to the transactions
contemplated by this Credit Agreement, debts beyond their ability to pay such debts as they become
due. In executing the Credit Documents and consummating the transactions contemplated thereby,
none of the Credit Parties intends to hinder, delay or defraud either present or future creditors
or other Persons to which one or more of the Credit Parties is or will become indebted.
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Section 3.18 Investments. |
All Investments of each of the Credit Parties and their Subsidiaries (including without
limitation the CLS Parties) are Permitted Investments.
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Section 3.19 Location of Collateral. |
Set forth on Schedule 3.19(a) is a list of all Properties of the Credit Parties and
their Subsidiaries as of the Closing Date with street address, and state or country where located.
Set forth on Schedule 3.19(b) is a list of all locations where any tangible personal
property of the Credit Parties and their Subsidiaries is located as of the Closing Date, including
state or country where located. Set forth on Schedule 3.19(c) is the state of
incorporation or organization, the chief executive office and the principal place of business of
each of the Credit Parties and their Subsidiaries (including without limitation the CLS Parties
after giving effect to the CLS Acquisition) as of the Closing Date.
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Section 3.20 No Burdensome Restrictions. |
None of the Credit Parties and their Subsidiaries, and none of the CLS Parties, is a party to
any agreement or instrument or subject to any other obligation or any charter or corporate
restriction or any provision of any applicable law, rule or regulation which, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
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Section 3.21 Brokers Fees. |
None of the Credit Parties and their Subsidiaries, and none of the CLS Parties, has any
obligation to any Person in respect of any finders, brokers, investment banking or other similar
fee in connection with any of the transactions contemplated under the Credit Documents and the CLS
Acquisition Agreement other than (i) the closing and other fees payable pursuant to this Credit
Agreement and as set forth in the Fee Letter and (ii) investment banking fees payable in connection
with the CLS Acquisition.
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Section 3.22 Labor Matters. |
Except as set forth on Schedule 3.22 hereto, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Credit Parties or their
Subsidiaries (including without limitation the CLS Parties after giving effect to the CLS
Acquisition) as of the Closing Date or the date Schedule 3.22 was last updated in
accordance with the terms of Section 5.2(b), as applicable. None of the Credit Parties and their
Subsidiaries (including without limitation the CLS Parties after giving effect to the CLS
Acquisition) (a) has suffered any strikes, walkouts, work stoppages or other material labor
difficulty within the last five years or (b) has knowledge of any potential or pending strike,
walkout or work stoppage which, in either case, could reasonably be expected to have a Material
Adverse Effect. Other than as set forth on Schedule 3.22, no material unfair labor
practice complaint is pending against any Credit Party as of the Closing Date or the date
Schedule 3.22 was last updated in accordance with the terms of Section 5.2(b), as
applicable.
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Section 3.23 Security Documents. |
The Security Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby. Except as set forth in the Security Documents or in Schedule
3.23, such security interests and Liens are currently (or will be, upon (a) the filing of
appropriate financing statements with the Secretary of State of the state of incorporation for each
Credit Party, the filing of appropriate assignments or notices with the United States Patent and
Trademark Office and the United States Copyright Office, and the recordation of the applicable
Mortgage Instruments, in each case in favor of the Administrative Agent, on behalf of the Lenders,
(b) the Administrative Agent obtaining Control (as defined in the Security Agreement) over those
items of Collateral in which a security interest is perfected through Control and (c) with respect
to the Foreign Pledge Documents, providing such notifications and making such filings and
registrations as are required under applicable law) perfected security interests and Liens, prior
to all other Liens other than Permitted Liens.
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Section 3.24 Accuracy and Completeness of Information. |
All factual information heretofore, contemporaneously or hereafter furnished by or on behalf
of any Credit Party or any of its Subsidiaries (including without limitation by the CLS Parties
after the CLS Acquisition) to the Administrative Agent, the Arranger or any Lender for purposes of
or in connection with this Credit Agreement or any other Credit Document, or any transaction
contemplated hereby or thereby, is or will be true and accurate in all material respects and not
incomplete by omitting to state any material fact necessary to make such information not
misleading. As of the Closing Date, there is no fact now known to any Credit Party or any of its
Subsidiaries which, individually or in the aggregate, has, or could reasonably be expected to have,
a Material Adverse Effect, which fact has not been set forth herein, in the financial statements of
the Company and its Subsidiaries or the financial statements of the CLS Parties furnished to the
Administrative Agent and the Lenders, or in any certificate, opinion or other written statement
made or furnished by any Credit Party or any CLS Party to the Administrative Agent and the Lenders.
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Section 3.25 Material Contracts. |
As of the Closing Date, after giving effect to the refinancing of the Existing Credit
Agreement, the Credit Parties and their Subsidiaries (including without limitation the CLS Parties
after giving effect to the CLS Acquisition) are not party to any Material Contract other than the
CLS Acquisition Agreement and the agreements set forth on Schedule 3.25. The Company may
update Schedule 3.25 from time to time by providing a replacement Schedule 3.25 to
the Administrative Agent.
The present insurance coverage of the Credit Parties and their Subsidiaries (including without
limitation the CLS Parties after giving effect to the CLS Acquisition) is outlined as to carrier,
policy number, expiration date, type and amount on Schedule 3.26 and such insurance
coverage complies the requirements set forth in Section 5.5(b).
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Section 3.27 Anti-Terrorism Laws. |
Neither any Credit Party nor any of its Subsidiaries nor any of the CLS Parties is an enemy
or an ally of the enemy within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit Party nor
any or its Subsidiaries nor any of the CLS Parties is in violation of (a) the Trading with the
Enemy Act, as amended, (b) any of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto or (c) the Patriot Act (as defined in Section 9.18). None of the
Credit Parties and none of the CLS Parties (i) is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or transactions,
or is otherwise associated, with any such blocked person.
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Section 3.28 Compliance with OFAC Rules and Regulations; FCPA. |
(a) None of the Credit Parties, nor or any of their respective Subsidiaries nor CLS
(after giving effect to the CLS Acquisition) or, to the knowledge of the Borrowers, any
director, officer, employee, or Affiliate of any of the Credit Parties, any of the CLS
Parties (after giving effect to the CLS Acquisition) or any of their respective Subsidiaries
(in the case of CLS, after giving effect to the CLS Acquisition), is a Person that is, or is
owned or controlled by Persons that are: (i) the subject of any sanctions administered or
enforced by the U.S. Department of the Treasurys Office of Foreign Assets Control
(OFAC), the U.S. Department of State, the United Nations Security Council, the
European Union, Her Majestys Treasury, or other relevant sanctions authority (collectively,
Sanctions), or (ii) located, organized or resident in a country or territory that
is, or whose government is, the subject of Sanctions, including, without limitation,
currently, Cuba, Iran, North Korea, Sudan and Syria.
(b) None of the Credit Parties, nor any of their respective Subsidiaries or, to the
knowledge of the Borrowers, any director, officer, employee, Affiliate or other Person
acting on behalf of any of the Borrowers, any of the CLS Parties (after giving effect to the
CLS Acquisition) or any of their respective Subsidiaries (in the case of CLS, after giving
effect to the CLS Acquisition), is aware or has taken any action, directly or indirectly,
that would result in a violation by such Persons of any applicable anti-bribery law or
anti-corruption law, including, but not limited to, the United Kingdom Bribery Act 2010 (the
UK Bribery Act) and the U.S. Foreign Corrupt Practices Act of 1977 (the FCPA).
Furthermore, the Credit Parties and their respective Subsidiaries and, to the knowledge of
the Borrower, its Affiliates, and the CLS Parties (after giving effect to the CLS
Acquisition) have conducted their businesses in material compliance with the UK Bribery Act,
the FCPA and similar laws, rules or regulations (including other applicable anti-corruption
laws) and have instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued material compliance therewith.
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Section 3.29 Directors; Capitalization. |
Set forth on Schedule 3.29 is a list of the directors of the Companys board of
directors as of the Closing Date. As of the dates set forth on Schedule 3.29, the
capitalization of the Company was as set forth on Schedule 3.29. The Company is not aware
of any changes in capitalization since the dates reported on Schedule 3.29 that constitute a Change
of Control.
ARTICLE IV.
CLOSING CONDITIONS
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Section 4.1 Conditions to Closing Date and Term Loans and Initial Revolving Loans. |
The obligation of each Lender to make the Term Loans and the Initial Revolving Loans on the
Closing Date is subject solely to the satisfaction of the following conditions precedent:
(a) Credit Documents. Each of the Credit Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force and effect
and shall be in form and substance substantially consistent with the terms set forth in the
Commitment Letter and reasonably satisfactory to the Administrative Agent. The
Administrative Agent (or its counsel) shall have received (including by telecopy or
electronic transmission) a fully executed copy of each such Credit Document.
(b) Authority Documents. The Administrative Agent shall have received the
following:
(i) Articles of Incorporation. (A) Copies of the articles of
incorporation or other charter documents (or the foreign equivalent, if any), as
applicable, of each Credit Party certified (I) by a secretary, assistant secretary
or authorized board member(s) of such Credit Party (pursuant to a secretarys or
directors certificate in substantially the form of Schedule 4.1(b) attached
hereto), as of the Closing Date to be true and correct and in force and effect as of
such date, and (II) to be true and complete as of a recent date by the appropriate
Governmental Authority of the state or country of its incorporation or organization,
as applicable; and (B) a copy of certified articles of association and a copy of a
certified excerpt from the register of commerce with respect to CLS (each not older
than 10 Business Days).
(ii) Resolutions. Copies of resolutions of the board of directors or
comparable managing body and, to the extent applicable, the general meeting of
shareholders of each Credit Party approving and adopting the Credit Documents, the
transactions contemplated therein and authorizing execution and delivery thereof,
certified by a secretary, assistant secretary or authorized board member(s) of such
Credit Party (pursuant to a secretarys or directors certificate in substantially
the form of Schedule 4.1(b) attached hereto) as of the Closing Date to be
true and correct and in force and effect as of such date.
(iii) Bylaws. A copy of the bylaws or comparable operating agreement
(or the foreign equivalent, if any) of each Credit Party certified by a secretary,
assistant secretary or authorized board member(s) of such Credit Party (pursuant to
a secretarys or directors certificate in substantially the form of Schedule
4.1(b) attached hereto) as of the Closing Date to be true and correct and in
force and effect as of such date.
(iv) Good Standing. Copies of certificates of good standing, existence
or its equivalent with respect to each Credit Party (to the extent applicable under
the laws of its jurisdiction of organization) certified as of a recent date by the
appropriate Governmental Authorities of its jurisdiction of organization and each
other state or country in which the failure to so qualify and be in good standing
could reasonably be expected to have a Material Adverse Effect on the business or
operations of the Credit Parties and their Subsidiaries in such state or country.
(v) Incumbency. An incumbency certificate (or the foreign equivalent)
of each Credit Party certified by a secretary, assistant secretary or authorized
board member(s) (pursuant to a secretarys or directors certificate in
substantially the form of Schedule 4.1(b) attached hereto) to be true and
correct as of the Closing Date.
(c) CLS Acquisition.
(i) The Administrative Agent shall be reasonably satisfied that the CLS
Acquisition has been or will be consummated within five (5) Business Days after the
funding of the Term Loans and the Initial Revolving Loans (and no later than January
9, 2015) pursuant to the terms of the CLS Acquisition Agreement and related
documentation governing the terms of the CLS Acquisition without waiver of any such
terms or conditions (except with the prior written consent of the Administrative
Agent);
(ii) Receipt of all material consents and approvals and the making of all
filings and registrations required by Swiss, U.S. federal, state or local
governmental authority to the extent required by the CLS Acquisition Agreement, and
(iii) The CLS Acquisition Reps (as defined below) shall be true and correct in
all material respects (or, if any such representations and warranties are already
qualified by concepts of materiality, in all respects) as of the Closing Date, but
only to the extent required under Section 4.1(d).
(d) CLS Acquisition Reps; Specified Representations. The only representations
the accuracy of which shall be a condition to availability of the Loans on the Closing Date
shall be (i) such of the representations made by or on behalf of the CLS Sellers in relation
to CLS in the CLS Acquisition Agreement as are material to the interests of the Lenders, but
only to the extent that Borrowers have the right to terminate their (or their Affiliates)
obligations under the CLS Acquisition Agreement or decline to consummate the CLS Acquisition
as a result of a breach of such representations in the CLS Acquisition Agreement (the
CLS Acquisition Reps) and (ii) the Specified Representations. For purposes
hereof, Specified Representations means the representations and warranties of the
Borrowers and the US Guarantors set forth in Sections 3.3 (clauses (a) and (b) and the final
sentence thereof only), 3.4, 3.7, 3.8, 3.11, 3.17 (the first sentence only), 3.23 (subject
to Section 5.12(c)), 3.27 and 3.28.
(e) Events of Default. There will not have occurred and be continuing any Event
of Default under Sections 7.1(e), of the Existing Credit Agreement, or any Event of Default
on account of the illegality of the execution and delivery of the CLS Acquisition Agreement
and the consummation of the CLS Acquisition and the Loans to be extended pursuant to this
Agreement.
(f) Legal Opinions of Counsel. The Administrative Agent shall have received
(i) a signed opinion of Wilmer Cutler Pickering Hale and Dorr LLP, U.S. counsel to the
Credit Parties (which shall include, without limitation, opinions with respect to the due
organization and valid existence of each US Credit Party, opinions as to perfection of the
Liens granted to the Administrative Agent pursuant to the US Pledge Agreement and the
Security Agreement and opinions as to the non-contravention of the US Credit Parties
organizational documents, (ii) a signed opinion of AMMC Law S.A., Luxembourg counsel to
Lionbridge Luxembourg S.à.r.l. (which shall include, without limitation, opinions with
respect to the due organization and valid existence of Lionbridge Luxembourg S.à.r.l.,
opinions as to the non-contravention of Lionbridge Luxembourg S.à.r.l.s organizational
documents), and (iii) a signed opinion of A&L Goodbody, Irish counsel to the Administrative
Agent (which shall include, without limitation, opinions with respect to the due
organization and valid existence of the Foreign Borrowers, opinions as to perfection of the
Liens granted to the Administrative Agent pursuant to the Charge on Shares of Lionbridge
International, the Charge on Shares of Lionbridge International Finance Limited Foreign
Pledge Agreements and related Foreign Pledge Documents and opinions as to the
non-contravention of the Foreign Borrowers organizational documents). Each opinion
delivered pursuant to this Section 4.1(f) shall be addressed to the Administrative Agent and
the Lenders and be in form and substance acceptable to the Administrative Agent.
(g) Personal Property Collateral. The Administrative Agent shall have
received, in form and substance satisfactory to the Administrative Agent:
(i) (A) searches of Uniform Commercial Code filings (or the foreign equivalent)
in the jurisdiction of the chief executive office of each Credit Party to the extent
requested by the Administrative Agent, their respective U.S. Subsidiaries and each
jurisdiction where any Collateral is located or where a filing would need to be made
in order to perfect the Lenders security interest in the Collateral, copies of the
financing statements (or their equivalents under applicable law) on file in such
jurisdictions and evidence that no Liens exist other than Permitted Liens and (B)
tax lien, judgment and pending litigation searches;
(ii) searches of ownership of Intellectual Property in the appropriate
governmental offices and such patent/trademark/copyright filings as requested by the
Administrative Agent in order to perfect the Administrative Agents security
interest in the Intellectual Property;
(iii) completed UCC financing statements (or foreign equivalent) for each
appropriate jurisdiction as is necessary, in the Administrative Agents sole
discretion, to perfect the Lenders security interest in the Collateral;
(iv) subject in each case to Section 5.12(c), (A) with respect to the stock or
membership certificates, if any, evidencing the Capital Stock pledged to the
Administrative Agent pursuant to the Pledge Agreements, duly executed in blank
undated stock or transfer powers, and (B) confirmation by the parties to the
Security Agreement that it continues to secure the Credit Party Obligations; and
(v) duly executed consents of the Credit Parties as are necessary, in the
Administrative Agents sole discretion, to perfect the Lenders security interest in
the Collateral;
(h) The Company shall have delivered to the Administrative Agent and the Lenders the
most recent financial statements of CLS and its Subsidiaries as are required to be delivered
by CLS and available to the Company pursuant to the CLS Acquisition Agreement, and there
shall not have occurred, or be reasonably expected to occur, a Material Adverse Effect, as
defined in the CLS Acquisition Agreement (to the extent such Material Adverse Effect shall
provide the Borrowers with the right to terminate the CLS Acquisition Agreement or decline
to consummate the CLS Acquisition).
(i) Projections. The Administrative Agent shall have received projections
covering the Company and its Subsidiaries on a consolidated basis for the period through
December 31, 2017, including pro forma projections including the CLS Parties for such
period.
(j) Officers Certificates. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Company as of the Closing Date stating
that immediately after giving effect to this Credit Agreement (including the initial
Extensions of Credit hereunder) and the other Credit Documents and all the transactions
contemplated therein or thereby to occur on such date, (A) no Default or Event of Default
exists, (B) all representations and warranties contained herein and in the other Credit
Documents (1) that contain a materiality qualification are true and correct and (2) that do
not contain a materiality qualification are true and correct in all material respects;
provided, however, that if any Defaults or Events of Default exist, or if any
representation or warranty is not true and correct as specified in (1) or (2) above, the
certificate delivered pursuant to this paragraph shall specify such Defaults and Events of
Default or failure of such representation and warranty to be true and correct, and the
existence of such Defaults and/or Events of Default, or failure of a representation and
warranty to be so true and correct, shall not be deemed a failure of a condition to the
extension of the Loans to be extended on the Closing Date hereunder, so long as none of such
Defaults or Events of Default, or breaches of a representation and warranty other than the
Specified Representations, constitute a breach of Sections 4.1(d) or (e), and provided
further that the existence of any such Default or Event of Default or breach of a
representation and warranty shall cause the Borrowers to fail to be in compliance with
Section 4.2(b) with respect to any Loans requested after such initial Closing Date Loans
(k) Account Designation Letter. The Administrative Agent shall have received
the executed Account Designation Letter in the form of Schedule 1.1-1 hereto.
(l) Notice of Borrowing. The Administrative Agent shall have received a Notice
of Borrowing with respect to the Loans to be made on the Closing Date.
(m) Solvency Certificate. The Administrative Agent shall have received an
officers certificate prepared by the chief financial officer of the Company as to the
financial condition, solvency and related matters of each Credit Party and each CLS Party
and their respective Subsidiaries, in each case after giving effect to the CLS Acquisition
and the initial Extensions of Credit under the Credit Documents, which certifies to the
representations in Section 3.17.
(n) Consents. To the extent required to satisfy the closing conditions
specified in Sections 4.1(a), (c), (d) and (e), the Administrative Agent shall have received
evidence that all governmental, shareholder and material third party consents and approvals
necessary in connection with this Credit Agreement and the other Credit Documents and the
financings and other transactions contemplated hereby have been obtained.
(o) Financial Statements. The Administrative Agent shall have received copies
of the financial statements referred to in Sections 3.1(a), clauses (a) and (b) thereof,
each in form and substance satisfactory to it.
(p) Indebtedness. After giving effect to the Commitments hereunder, the
initial Loans hereunder and the closing of the CLS Acquisition, the Borrowers and their
Subsidiaries (including the CLS Parties acquired in the CLS Acquisition assuming the closing
of the CLS Acquisition) shall have outstanding no Indebtedness other than (a) the Loans and
other extensions of credit under this Agreement and (b) any other Indebtedness permitted
under Section 6.1 of this Agreement.
(q) Fees and Expenses. The Administrative Agent, Arranger and
Lenders shall have received all fees required to be paid in the Fee Letter and the
Commitment Letter, and all expenses (including legal fees and expenses) for which invoices
have been presented.
(r) Patriot Act Certificate; Know Your Customer Requirements. The
Administrative Agent and the Arranger shall have received, for benefit of itself and the
Lenders, all documentation and other information as is reasonably requested by the
Administrative Agent and the Lenders under applicable know your customer and anti-money
laundering rules and regulations, including the Patriot Act, to the extent requested by any
Lender at least ten (10) Business Days prior to the Closing Date, including, without
limitation, the identity of the Company, the other Credit Parties and the CLS Parties, the
name and address of the Company, the other Credit Parties and the CLS Parties and other
information that will allow the Administrative Agent or any Lender, as applicable, to
identify each such entity in accordance with the Patriot Act and such other applicable laws
and regulations.
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Section 4.2 Conditions to All Extensions of Credit after the Closing Date. |
The obligation of each Lender to make any Extension of Credit hereunder after the Closing Date
is subject to the satisfaction of the following conditions precedent on the date of making such
Extension of Credit:
(a) Representations and Warranties. The representations and warranties made by
the Credit Parties herein, in the Security Documents or which are contained in any
certificate furnished at any time under or in connection herewith shall be true and correct
on and as of the date of such Extension of Credit as if made on and as of such date, except
to the extent such representations and warranties were expressly made only as of a specific
date.
(b) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extension of Credit to
be made on such date unless such Default or Event of Default shall have been waived in
accordance with this Credit Agreement. The funding of the initial Extensions of Credit made
on the Closing Date shall not, for purposes of this Section 4.2(b), be deemed a waiver of
any Default or Event of Default that was in existence on such date or after giving effect to
such Extensions of Credit.
(c) Compliance with Commitments. Immediately after giving effect to the making
of any such Extension of Credit (and the application of the proceeds thereof), (i) the sum
of the aggregate principal Dollar Amount (determined as of the most recent Revaluation Date)
of outstanding Revolving Loans plus outstanding Swingline Loans plus LOC Obligations shall
not exceed the Revolving Committed Amount, (ii) the LOC Obligations shall not exceed the LOC
Committed Amount and (iii) the Swingline Loans shall not exceed the Swingline Committed
Amount.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan is
requested, all conditions set forth in Section 2.1 shall have been satisfied.
(e) Additional Conditions to Letters of Credit. If the issuance of a Letter of
Credit is requested, all conditions set forth in Section 2.2 shall have been satisfied.
(f) Additional Conditions to Swingline Loans. If a Swingline Loan is
requested, all conditions set forth in Section 2.3 shall have been satisfied.
(g) Additional Conditions to Increase of Facility. If an Increase of the
Revolving Commitment is requested, all conditions set forth in Section 2.4 shall have been
satisfied.
Each request for an Extension of Credit made after the Closing Date and each acceptance by the
Company of any such Extension of Credit shall be deemed to constitute representations and
warranties by the Credit Parties as of the date of such Extension of Credit that the conditions set
forth above in paragraphs (a) through (g), as applicable, have been satisfied.
ARTICLE V.
AFFIRMATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated, no Note
remains outstanding and unpaid and the Credit Party Obligations (excluding any continuing
obligations under any Secured Hedging Agreements, pooling agreements or cash management agreements)
and all other amounts owing to the Administrative Agent or any Lender hereunder are paid in full,
the Credit Parties shall, and shall cause each of their Subsidiaries (other than in the case of
Sections 5.1 or 5.2 hereof), to:
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Section 5.1 Financial Statements. |
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available and in any event no
later than the earlier of (i) to the extent applicable, the date the Company is required by
the SEC to deliver its Form 10-K for any fiscal year of the Company and (ii) ninety (90)
days after the end of each fiscal year of the Company, a copy of the consolidated and
consolidating balance sheet of the Company and its consolidated Subsidiaries as at the end
of such fiscal year and the related consolidated and consolidating statements of income and
retained earnings and of cash flows of the Company and its consolidated Subsidiaries for
such year, which in the case of the consolidated statements shall be audited by a firm of
independent certified public accountants of nationally recognized standing reasonably
acceptable to the Administrative Agent, setting forth in each case in comparative form the
figures for the previous year, reported on without a going concern or like qualification
or exception, or qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such financial statements
without such qualification, and which shall include pro forma unaudited consolidated
financial statements consolidating the CLS Parties for all applicable periods following the
CLS Acquisition when not included within the audited consolidated financial statements;
(b) Quarterly Financial Statements. As soon as available and in any event no
later than the earlier of (i) to the extent applicable, the date the Company is required by
the SEC to deliver its Form 10-Q for any fiscal quarter of the Company and (ii) forty-five
(45) days after the end of each fiscal quarter of the Company, a copy of the consolidated
and consolidating balance sheet of the Company and its consolidated Subsidiaries as at the
end of such period and related consolidated and consolidating statements of income and
retained earnings and of cash flows for the Company and its consolidated Subsidiaries for
such quarterly period and for the portion of the fiscal year ending with such period, in
each case setting forth in comparative form consolidated figures for the corresponding
period or periods of the preceding fiscal year (subject to normal recurring year end audit
adjustments), and which shall include pro forma unaudited consolidated financial statements
consolidating the CLS Parties for all applicable periods (following the CLS Acquisition, and
excluding comparative figures with respect to prior periods) to the extent not included
within the consolidated financial statements described in this paragraph; and
(c) Annual Operating Budget and Cash Flow. As soon as available, but in any
event within 15 days prior to the end of each fiscal year, a copy of the detailed annual
operating budget or plan including cash flow projections of the Company and its Subsidiaries
(including the CLS Parties) for the next four fiscal quarter period prepared on a quarterly
basis, in form and detail reasonably acceptable to the Administrative Agent and the Lenders,
together with a summary of the material assumptions made in the preparation of such annual
budget or plan;
all such financial statements to be complete and correct in all material respects (subject, in the
case of interim statements, to normal recurring year end audit adjustments) and to be prepared in
reasonable detail and, in the case of the annual and quarterly financial statements provided in
accordance with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a description of, and an
estimation of the effect on the financial statements on account of, a change, if any, in the
application of accounting principles as provided in Section 1.3.
Reports and documents required to be delivered to the Lenders pursuant to Sections 5.1 and 5.2
shall be deemed delivered upon the delivery of such reports and documents electronically to the
Administrative Agent in a format that will allow such reports and documents to be posted to
Intralinks or other electronic medium accessible to the Lenders and reasonably acceptable to the
Administrative Agent, or, in the case of materials filed and reasonably accessible to the Lenders
and the Administrative Agent with the SEC, upon notice to the Administrative Agent of such filing;
provided, that if any Lender shall request a printed copy of any such report or document, the
Company shall promptly provide such printed copies to such Lender.
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Section 5.2 Certificates; Other Information. |
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections
5.1(a) and 5.1(b) above, a certificate of a Responsible Officer stating that, to the best of
such Responsible Officers knowledge, each of the Credit Parties during such period observed
or performed in all material respects all of its covenants and other agreements, and
satisfied in all material respects every condition, contained in this Credit Agreement to be
observed, performed or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such certificate and
such certificate shall include the calculations in reasonable detail required to indicate
compliance with Section 5.9 as of the last day of such period;
(b) concurrently with or prior to the delivery of the financial statements referred to
in Sections 5.1(a) and 5.1(b) above, (i) an updated copy of Schedule 3.12 if the
Company or any other Credit Party has formed or acquired a new Subsidiary since the Closing
Date or since Schedule 3.12 was last updated, as applicable, (ii) an updated copy of
Schedule 3.16 if the Company or any other Credit Party has registered, applied for
registration of, acquired or otherwise obtained ownership of any new Intellectual Property
since the Closing Date or since Schedule 3.16 was last updated, as applicable, (iii)
an updated copy of Schedule 3.22 if the Company or any other Credit Party has
entered into any new collective bargaining agreement or Multiemployer Plan or if any new
unfair labor practice complaint has been filed against the Company or any other Credit Party
since Schedule 3.22 was last updated and (iv) an updated copy of Schedule
3.25 if any new Material Contract has been entered into since the Closing Date or since
Schedule 3.25 was last updated, as applicable, together with a copy of each new
Material Contract;
(c) promptly, such additional financial and other information as the Administrative
Agent, on behalf of any Lender, may from time to time reasonably request; and
(d) promptly notify the Administrative Agent if it becomes aware of the occurrence of
any Default or Event of Default.
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Section 5.3 Payment of Taxes. |
Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, subject, where applicable, to specified grace periods, (a) its material taxes
(Federal, state, local and any other taxes) that, if unpaid, would result in Liens on the
Collateral prior in rank to the Liens of the Administrative Agent and (b) any material additional
costs that are imposed as a result of any failure to so pay, discharge or otherwise satisfy such
taxes, except, in each case, when the amount or validity of any such taxes is currently being
contested in good faith by appropriate proceedings, reserves, if applicable, in conformity with
GAAP with respect thereto have been provided on the books of the Credit Parties and no foreclosure
action has been commenced by a Governmental Authority with respect thereto.
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Section 5.4 Conduct of Business and Maintenance of Existence. |
(a) Continue to engage in business of the same general type as now conducted by it on
the Closing Date and preserve, renew and keep in full force and effect its corporate
existence; (b) take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; (c) comply in all material
respects with all Contractual Obligations; and (d) comply with all Requirements of Law
applicable to it, except, in the case of clauses (b), (c) and (d) above, to the extent that
failure to comply therewith could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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Section 5.5 Maintenance of Property; Insurance. |
(a) Keep all material property useful and necessary in its business in good working
order and condition (ordinary wear and tear and obsolescence excepted);
(b) Maintain with financially sound and reputable insurance companies liability,
casualty, property and business interruption insurance (including, without limitation,
insurance with respect to its tangible Collateral) in at least such amounts and against at
least such risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative Agent, upon the
request of the Administrative Agent, full information as to the insurance carried. The
Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear,
and/or additional insured with respect to any such casualty, property and liability
insurance, as applicable, and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent instruments furnished
to the Administrative Agent, that it will give the Administrative Agent thirty (30) days
prior written notice before any such policy or policies shall be altered or canceled, and
such policies shall provide that no act or default of the Credit Parties or any of their
Subsidiaries or any other Person shall affect the rights of the Administrative Agent or the
Lenders under such policy or policies. The insurance coverage of the Credit Parties and
their Subsidiaries as of the Closing Date is outlined as to carrier, policy number,
expiration date, type and amount on Schedule 3.26; and
(c) In case of any material loss, damage to or destruction of the Collateral of any
Credit Party or any part thereof, such Credit Party shall promptly give written notice
thereof to the Administrative Agent generally describing the nature and extent of such
damage or destruction.
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Section 5.6 Inspection of Property; Books and Records; Discussions. |
Keep proper books of records and account in which full, true and correct entries in conformity
with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to
its businesses and activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent or any Lender, the Administrative Agent or any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired, and to discuss the business,
operations, properties and financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its independent certified
public accountants; provided, that so long as no Event of Default has occurred and is continuing,
the Credit Parties shall only be required to pay the fees and expenses of the Administrative Agent
and any Lender for one such inspection by such Person in any fiscal year.
Give notice in writing to the Administrative Agent (which shall promptly transmit such notice
to each Lender) of:
(a) promptly, but in any event within two (2) Business Days after any Credit Party
knows or has reason to know thereof, the occurrence of any Default or Event of Default;
(b) promptly, (i) any default or event of default by the Company or any of its
Subsidiaries under any Material Contract and (ii) any material default or material event of
default by a third party under any Material Contract;
(c) promptly, any litigation, or any investigation or proceeding known to any Credit
Party (i) affecting any Credit Party or any of their Subsidiaries which, if adversely
determined, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or involve a monetary claim in excess of $1,000,000, (ii) affecting
or with respect to this Credit Agreement, any other Credit Document or any security interest
or Lien created thereunder or (iii) involving an environmental claim or potential liability
under Environmental Laws which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(d) any labor controversy that has resulted in, or threatens to result in, a strike or
other work action against any Credit Party which could reasonably be expected to have a
Material Adverse Effect;
(e) any attachment, judgment, lien, levy or order exceeding $1,000,000 that may be
assessed against or threatened against any Credit Party other than Permitted Liens;
(f) as soon as possible and in any event within thirty (30) days after any Credit Party
knows or has reason to know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action
by the PBGC or any Credit Party, any Commonly Controlled Entity or any Multiemployer Plan,
with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(g) promptly, any notice of any material violation received by any Credit Party from
any Governmental Authority including, without limitation, any notice of material violation
of Environmental Laws; and
(h) promptly, any other development or event which could reasonably be expected to have
a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what action the Credit
Parties propose to take with respect thereto. In the case of any notice of a Default or Event of
Default, the Company shall specify that such notice is a Default or Event of Default notice on the
face thereof.
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Section 5.8 Environmental Laws. |
Except for matters that, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:
(a) Comply in all material respects with, and ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws;
(b) Conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply in
all material respects with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are being contested in good
faith by appropriate proceedings; and
(c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and
their respective employees, agents, officers and directors, from and against any and all
claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Credit Parties or any of their Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorneys and consultants fees,
investigation and laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The agreements in this paragraph
shall survive repayment of the Credit Party Obligations and all other amounts payable
hereunder and termination of the Commitments and the Credit Documents.
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Section 5.9 Financial Covenants. |
Comply with the following financial covenants:
(a) Leverage Ratio. The Leverage Ratio, as of the last day of each fiscal
quarter of the Company for the four consecutive fiscal quarters then ending, shall be less
than or equal to (i) for each of the eight consecutive fiscal quarters commencing with the
quarter ending March 31, 2015, 3.25 to 1.0, and (ii) for each fiscal quarter thereafter,
3.00 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of the
last day of each fiscal quarter of the Company for the four consecutive fiscal quarters then
ending, shall be greater than or equal to (i) for each of the eight consecutive fiscal
quarters commencing with the quarter ending March 31, 2015, 1.05 to 1.0, and (ii) for each
fiscal quarter thereafter, 1.25 to 1.0.
The parties hereto acknowledge and agree that, for purposes of all calculations made in
determining compliance for any applicable period with the financial covenants set forth in this
Section 5.9, (i) after consummation of any Permitted Acquisition, (A) income statement items and
other balance sheet items (whether positive or negative) attributable to the Target acquired in
such transaction shall be included in such calculations to the extent relating to such applicable
period, subject to adjustments mutually acceptable to the Company and the Required Lenders, and (B)
Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall be
excluded from such calculations and deemed to have been retired as of the first day of such
applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi), (A) income
statement items and other balance sheet items (whether positive or negative) attributable to the
Property disposed of shall be excluded in such calculations to the extent relating to such
applicable period, subject to adjustments mutually acceptable to the Company and the Required
Lenders and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be
excluded from such calculations and deemed to have been repaid as of the first day of such
applicable period.
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Section 5.10 Additional Subsidiary Guarantors. |
If at any time (i) any Domestic Subsidiary which is not a US Guarantor (each an Excluded
US Subsidiary) shall individually generate more than two and one-half percent (2.5%) of
Consolidated Revenues for the period of four consecutive fiscal quarters ending as of the end of
the immediately preceding fiscal quarter on a pro forma basis or (ii) all Excluded US Subsidiaries
shall, collectively, generate more than five percent (5%) of Consolidated Revenues for the period
of four consecutive fiscal quarters ending as of the end of the immediately preceding fiscal
quarter on a pro forma basis, then in either case the Credit Parties will (A) within 30 days
thereafter (or such extended period of time as agreed to by the Administrative Agent) (1) cause
one or more Excluded US Subsidiaries to become a US Guarantor by execution of a Joinder Agreement,
such that immediately after its (or their) joinder as a US Guarantor, the remaining Excluded US
Subsidiaries shall not, individually or collectively, exceed the threshold requirements set forth
in clauses (i) and (ii) above, and (2) deliver with each Joinder Agreement substantially the same
documentation required pursuant to Sections 4.1(b)-(e) and 5.12 and such other documents or
agreements as the Administrative Agent may reasonably request. The Credit Party Obligations of the
Company shall be secured by, among other things, a first priority perfected security interest in
the Collateral of such new US Guarantor and a pledge of 100% of the Capital Stock of such new US
Guarantor and its Domestic Subsidiaries and 65% of the voting Capital Stock and 100% of the
non-voting Capital Stock of its first-tier Foreign Subsidiaries.
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Section 5.11 Compliance with Law. |
Comply with all laws, rules, regulations and orders, and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and its Property if noncompliance with any such
law, rule, regulation, order or restriction could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Maintain in effect and enforce policies and
procedures designed to ensure compliance by the Credit Parties and their respective directors,
officers and employees with Anti-Corruption Laws and applicable Sanctions.
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Section 5.12 Pledged Assets. |
(a) Except to the extent permitted to be accomplished after the Closing Date pursuant
to Section 5.12(c), cause each Credit Partys Collateral (other than real property) to be
subject at all times to a first priority, perfected Lien in favor of the Administrative
Agent (subject in each case to Permitted Liens) pursuant to the terms and conditions of the
Security Documents or such other security documents (including foreign security documents)
as the Administrative Agent shall reasonably request.
(b) From and after the Closing Date, in the event that (i) any US Credit Party acquires
a fee interest in real property or (ii) at the time any Person becomes a US Credit Party,
such Person owns or holds a fee interest in real property, the Company will promptly notify
the Administrative Agent of that fact and the applicable US Credit Party shall deliver to
the Administrative Agent with respect to any such real property located in the United
States, within 45 days after such acquisition or the time such Person becomes a US Credit
Party (or such longer period of time as may be agreed to by the Administrative Agent), a
Mortgage Instrument, title report, Mortgage Policy, flood hazard determination and such
other documentation as the Administrative Agent may require (including, without limitation,
a flood insurance policy, survey, environmental report, appraisal and zoning letter), each
in form and substance reasonably satisfactory to the Administrative Agent.
(c) With respect to all Collateral listed on Schedule 3.23, to the extent any such
required Collateral is not or cannot be provided on the Closing Date, or the Lien thereon
cannot be perfected or otherwise made a first priority Lien on the Closing Date in favor of
the Administrative Agent for the benefit of the Lenders, the Borrowers shall provide to the
Administrative Agent within forty-five (45) days of the Closing Date (or such longer period
as the Administrative Agent may agree), the documents required, and shall take the other
actions, if any, required, to provide to the Administrative Agent for the benefit of the
Lenders a perfected or other good, first priority Lien on all such items that are required
to be Collateral hereunder and under the Security Documents; provided,
however, that notwithstanding the foregoing, the Borrowers and US Guarantors shall
provide to the Administrative Agent on or before the Closing Date a pledge of Collateral
with respect to which a security interest may be granted and perfected (if perfection is
applicable) by means of (x) filing UCC financing statements or other similar filings, if
applicable, and (y) delivery of stock certificates, equity certificates (or equivalent) and
other certificated securities (to the extent they are available on the Closing Date and, if
not, then promptly thereafter), and provided further that the Borrowers shall
provide to the Administrative Agent the Collateral described in Section 5.15(b) within the
timeframe specified therein.
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Section 5.13 Covenants Regarding Patents, Trademarks and Copyrights. |
(a) Notify the Administrative Agent quarterly if it knows that any application, letters
patent or registration relating to any Patent, Patent License, Trademark or Trademark
License of the Credit Parties material to the business of such Credit Party will become
abandoned, or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding in the
United States Patent and Trademark Office or any court) regarding any Credit Partys
ownership of any Patent or Trademark material to the business of such Credit Party, its
right to patent or register the same, or to enforce, keep and maintain the same, or its
rights under any Patent License or Trademark License material to the business of such Credit
Party.
(b) Notify the Administrative Agent quarterly after it knows of any adverse
determination or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in any court) regarding any Copyright or
Copyright License of the Credit Parties material to the business of such Credit Party,
whether (i) such Copyright or Copyright License may become invalid or unenforceable prior to
its expiration or termination, or (ii) any Credit Partys ownership of such Copyright, its
right to register the same or to enforce, keep and maintain the same, or its rights under
such Copyright License, may become affected.
(c) (i) Notify the Administrative Agent quarterly of any filing by any Credit Party,
either itself or through any agent, employee, licensee or designee, of any application for
registration of any Intellectual Property with the United States Copyright Office or United
States Patent and Trademark Office or any similar office or agency in any other country or
any political subdivision thereof.
(ii) Concurrently with the delivery of quarterly and annual financial
statements of the Company pursuant to Section 5.1 hereof, provide the Administrative
Agent and its counsel a complete and correct list of all Intellectual Property owned
by or licensed to the Credit Parties that have not been set forth as annexes of such
documents and instruments showing all filings and recordings for the protection of
the security interest of the Administration Agent therein pursuant to the agreements
of the United States Patent and Trademark Office or the United States Copyright
Office.
(iii) Upon the reasonable request of the Administrative Agent, execute and
deliver any and all agreements, instruments, documents, and papers as the
Administrative Agent may reasonably request to evidence the Administrative Agents
security interest in the Intellectual Property and the general intangibles referred
to in clauses (i) and (ii) to the extent owned or licensed by US Credit Parties,
including, without limitation, the goodwill of the Company, relating thereto or
represented thereby (or such other Intellectual Property or the general intangibles
relating thereto or represented thereby as the Administrative Agent may reasonably
request).
(d) Take all necessary actions, including, without limitation, in any proceeding before
the United States Patent and Trademark Office or the United States Copyright Office, to
maintain each item of Intellectual Property of the Company or any other Credit Party
necessary and material to the business of such Person, including, without limitation,
payment of maintenance fees, filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition, interference and cancellation proceedings.
(e) In the event that any Credit Party becomes aware that any Intellectual Property
material to its business is infringed, misappropriated or diluted by a third party in any
material respect, notify the Administrative Agent promptly after it learns thereof and shall
promptly take such actions as such Credit Party, shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property.
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Section 5.14 Deposit Accounts. |
The US Credit Parties main operating cash accounts shall be maintained at HSBC or as
otherwise designated by HSBC, provided that, in each case, HSBC offers pricing, operational
capabilities and other terms competitive with other potential providers. Upon the occurrence and
during the continuance of an Event of Default, deliver Deposit Account Control Agreements
satisfactory to the Administrative Agent with respect to each deposit account of the US Credit
Parties, to the extent such Deposit Account Control Agreements may be obtained using commercially
reasonable efforts; provided, if any Deposit Account Control Agreement is not so obtained, the US
Credit Parties will take such action with respect to the applicable deposit account as the
Administrative Agent may reasonably request.
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Section 5.15 Further Assurances. |
(a) Generally. Upon the request of the Administrative Agent, promptly perform
or cause to be performed any and all acts and execute or cause to be executed any and all
documents for filing under the provisions of the UCC or any other Requirement of Law which
are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit
of the Lenders, Liens on the Collateral that are duly perfected in accordance with the
requirements of, or the obligations of the Credit Parties under, the Credit Documents and
all applicable Requirements of Law.
(b) Pledge of Shares of Tuscany and CLS. The Borrowers and the Foreign
Borrowers shall, within twenty (20) Business Days following the closing of the CLS
Acquisition (or such longer period as the Administrative Agent may agree), provide to the
Administrative Agent the documents necessary to provide the Administrative Agent with a
pledge of 100% of the shares of Tuscany and approximately 30% of the shares of CLS.
(c) Future Assurances regarding CLS. The Administrative Agent and the Lenders
shall have the right to require after the Closing Date, subject to the Borrowers consent
which shall not be unreasonably withheld or delayed, guaranties by CLS of the obligations of
LII and LIFL as Foreign Borrowers, and a pledge or grant of security interests in the assets
of CLS with respect to the obligations of LII and LIFL as Foreign Borrowers;
provided, however, that such guaranties, pledges and granting of security
interests in CLS assets may be limited (i) to the extent they are prohibited or restricted
by applicable law or (ii) would result in material adverse tax or accounting consequences to
the Borrowers or (iii) would result in a material burden that would exceed the benefit to
the Lenders that would be conferred thereby, and provided, however, that the
Borrowers shall not be deemed to have unreasonably withheld consent to the requested
guaranty, pledge or grant of security interest to the extent that the requested guaranty,
pledge or grant of a security interest would result in the negative consequences set forth
in any of the foregoing clauses (i), (ii) or (iii).
(d) Liability, Casualty, Property and Business Interruption Insurance. Within
ten (10) Business Days following the Closing Date, the Company shall deliver to the
Administrative Agent certificates of insurance evidencing liability, casualty, property and
business interruption insurance meeting the requirements set forth herein or in the Security
Documents and, upon request of the Administrative Agent, copies of insurance policies and
endorsements evidencing that such insurance complies with the requirements of this
paragraph. The Administrative Agent shall be named as loss payee and/or additional insured
with respect to any such insurance providing liability coverage or coverage in respect of
any Collateral, and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give thirty (30) days prior written notice before any
such policy or policies shall be altered or cancelled.
ARTICLE VI.
NEGATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so
long as this Credit Agreement is in effect and until the Commitments have terminated, no Note
remains outstanding and unpaid and the Credit Party Obligations (excluding any continuing
obligations under any Secured Hedging Agreements, pooling agreements or cash management agreements)
and all other amounts owing to the Administrative Agent or any Lender hereunder are paid in full,
that:
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Section 6.1 Indebtedness. |
The Credit Parties will not, nor will they permit any Subsidiary to, contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Credit Agreement and the other Credit
Documents;
(b) Indebtedness of the Credit Parties and their Subsidiaries existing as of the
Closing Date as referenced in the financial statements referenced in Section 3.1 (and set
out more specifically in Schedule 6.1(b)) hereto and renewals, refinancings or
extensions thereof in a principal amount not in excess of that outstanding as of the date of
such renewal, refinancing or extension;
(c) Indebtedness of the Credit Parties and their Subsidiaries incurred after the
Closing Date consisting of Capital Leases or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset; provided that (i) such
Indebtedness when incurred shall not exceed the purchase price or cost of construction of
such asset; (ii) no such Indebtedness shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon at the time of such refinancing; and (iii) the
total amount of all such Indebtedness shall not exceed $10,000,000 at any time outstanding;
(d) Indebtedness and obligations owing under (i) pooling agreements and cash management
agreements to the extent maintained with a Lender or an Affiliate of a Lender, and (ii)
Secured Hedging Agreements and other Hedging Agreements entered into in order to manage
existing or anticipated interest rate, exchange rate or commodity price risks and not for
speculative purposes;
(e) Guaranty Obligations in respect of Indebtedness of a Credit Party to the extent
such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.1;
(f) unsecured intercompany Indebtedness owed by Credit Parties (other than Foreign
Credit Parties) and their Domestic Subsidiaries to Subsidiaries of the Company;
(g) unsecured intercompany Indebtedness owed by Foreign Subsidiaries to Foreign
Subsidiaries;
(h) Indebtedness from Foreign Subsidiaries to US Credit Parties arising as a result of
the restructuring of existing Acquisition related intercompany balances;
(i) so long as no Default or Event of Default then exists or would exist after giving
effect to the incurrence of such Indebtedness, (i) unsecured intercompany Indebtedness owed
by Foreign Subsidiaries to US Credit Parties in accordance with the historical practices of
the US Credit Parties and in the ordinary course of business and (ii) other unsecured
intercompany Indebtedness owed by Foreign Subsidiaries to US Credit Parties in an aggregate
amount, with respect to all Foreign Subsidiaries, not to exceed (in the case of clause
(ii)), when combined (without duplication) with any outstanding Investments made pursuant to
clause (i)(y) of the definition of Permitted Investments, $10,000,000 at any time
outstanding;
(j) Indebtedness owed by Foreign Subsidiaries (other than Foreign Credit Parties) to
entities other than Credit Parties and their Subsidiaries in an aggregate amount, with
respect to all Foreign Subsidiaries (other than Foreign Credit Parties), not to exceed
$10,000,000 at any time outstanding;
(k) endorsements for collection, deposit or negotiation and warranties of products or
services, in each case incurred in the ordinary course of business;
(l) transactions permitted pursuant to Sections 6.4, 6.5 and 9.21 to the extent not
already permitted pursuant to this Section 6.1;
(m) other Indebtedness of the Credit Parties and their Subsidiaries which does not
exceed (i) $11,000,000 in the aggregate at any time outstanding on or before January 31,
2015, and (ii) $5,000,000 in the aggregate at any time outstanding thereafter; and
(n) Guaranty Obligations in respect of Indebtedness of a Foreign Subsidiary that is not
a Credit Party to the extent such Indebtedness is permitted to exist or be incurred pursuant
to this Section 6.1, provided that the total amount of all such Indebtedness shall
not exceed $10,000,000 at any time outstanding.
The Credit Parties will not, nor will they permit any Subsidiary to, nor will they permit any
of the CLS Parties after the CLS Acquisition to, contract, create, incur, assume or permit to exist
any Lien with respect to any of its property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, except for (i) in the case of the
Credit Parties only, Permitted Liens, and (ii) in the case of any Subsidiaries of the Company that
are not Credit Parties, such Liens described in clause (a) and clauses (c)-(n) of Permitted
Liens.
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Section 6.3 Nature of Business. |
The Credit Parties will not, nor will they permit any Subsidiary to, engage in any business
if, as a result, the general nature of the business in which the Company and its Subsidiaries are
engaged in would be substantially changed from the general nature of the business in which the
Company and its Subsidiaries, taken as a whole, are engaged in on the Closing Date.
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Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc. |
The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise
dispose of its property or assets or agree to do so at a future time, except the following,
without duplication, shall be expressly permitted:
(i) (A) the sale, transfer, lease or other disposition of inventory and
materials in the ordinary course of business and (B) the conversion of cash into
Corporate Investment Policy Investments and Corporate Investment Policy Investments
into cash;
(ii) Recovery Events;
(iii) the sale, lease, transfer or other disposition of machinery, parts and
equipment no longer used or useful in the conduct of the business of the Credit
Parties or any of their Subsidiaries;
(iv) the sale, lease, transfer or other disposition of property or assets (at
fair value) (A) between US Credit Parties, (B) between Foreign Credit Parties and
(C) between Foreign Subsidiaries (other than Foreign Credit Parties);
provided that in no event shall a Credit Party sell, transfer or otherwise
dispose of any Intellectual Property to a Person that is not a Credit Party, except
that the Foreign Borrowers may license such Intellectual Property in the ordinary
course of business, without the prior written consent of the Administrative Agent;
(v) the dissolution or winding up of any Subsidiary of the Company that is not
a Credit Party; provided, that the assets of any such Subsidiary shall be
transferred to another Subsidiary of the Company;
(vi) [Intentionally Omitted]
(vii) [Intentionally Omitted]
(viii) the dissolution or winding up of any Credit Party (other than a
Borrower); provided, that the assets of any such Credit Party shall be
transferred to another Credit Party;
(ix) (A) the sale or issuance of the Capital Stock of a Foreign Subsidiary
(other than a Credit Party) of the Company to any Subsidiary of the Company to the
extent not otherwise prohibited under this Credit Agreement or any of the other
Credit Documents, (B) the sale or issuance of the Capital Stock of a US Credit Party
(other than the Company) to another US Credit Party and (C) the sale or issuance of
the Capital Stock of a Foreign Credit Party to a Credit Party;
(x) the merger or consolidation of a Subsidiary of the Company (other than a
Borrower) into another Subsidiary of the Company; provided that if either
Subsidiary is a Credit Party, the continuing or surviving Person shall be a Credit
Party;
(xi) the merger or consolidation of any Subsidiary into the Company;
provided that the Company shall be the continuing or surviving entity;
(xii) transactions permitted pursuant to Sections 6.1, 6.5 and 9.21 to the
extent not already permitted pursuant to this Section 6.4(a);
(xiii) the sale, lease or transfer of property or assets not to exceed $500,000
in the aggregate in any fiscal year; and
(xiv) the sale of any Foreign Subsidiary (not including any Foreign Credit
Party) which the Company has demonstrated to the reasonable satisfaction of the
Administrative Agent has less than $10,000,000 in total annual revenue.
provided that (A) with respect to clause (ii) above, at least 75% of the consideration
received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or
Corporate Investment Policy Investments, and (B) with respect to clause (iv), no Default or Event
of Default shall exist or shall result therefrom; provided, further, that with respect to sales of
assets permitted hereunder only, the Administrative Agent shall, without the consent of the
Required Lenders, release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of
related transactions) the property or assets of any Person, other than (A) Permitted
Acquisitions and (B) except as otherwise limited or prohibited herein, purchases, leases or
acquisitions of inventory, materials, property and equipment in the ordinary course of
business, or (ii) enter into any transaction of merger or consolidation, except for (A)
Permitted Acquisitions and Investments or acquisitions permitted pursuant to Sections 6.4(a)
and 6.5 and (B) the merger or consolidation of a Credit Party with and into another Credit
Party; provided that if the Company is a party thereto, the Company will be the
surviving corporation.
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Section 6.5 Advances, Investments and Loans. |
The Credit Parties will not, nor will they permit any Subsidiary to, make any Investment
except for Permitted Investments.
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Section 6.6 Transactions with Affiliates. |
The Credit Parties will not, nor will they permit any Subsidiary to, enter into any
transaction or series of transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder or Affiliate (other than Credit Parties) other than on terms and
conditions substantially as favorable as would be obtainable in a comparable arms length
transaction with a Person other than an officer, director, shareholder or Affiliate, and except as
otherwise permitted by Sections 6.1, 6.2 and 6.4.
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Section 6.7 Ownership of Subsidiaries; Restrictions. |
The Credit Parties will not, nor will they permit any Subsidiary to, create, form or acquire
any Subsidiaries, except for Domestic Subsidiaries that are joined as Additional Credit Parties to
the extent required by Section 5.10 and Foreign Subsidiaries. Subject to Section 9.21, the Credit
Parties will not sell, transfer, pledge or otherwise dispose of any Capital Stock or other equity
interests in any of their Subsidiaries, nor will they permit any of their Subsidiaries to issue,
sell, transfer, pledge or otherwise dispose of any of their Capital Stock or other equity
interests, except in a transaction permitted by Section 6.4.
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Section 6.8 Corporate Changes. |
No Credit Party will, nor will it permit any of its Subsidiaries to, (a) change its fiscal
year, (b) amend, modify or change its articles of incorporation, certificate of designation (or
corporate charter or other similar organizational document) operating agreement or bylaws (or other
similar document) in any respect adverse to the interests of the Lenders without the prior written
consent of the Required Lenders, (c) change its state of incorporation, organization or formation
or have more than one state of incorporation, organization or formation or (d) materially change
its accounting method (except in accordance with GAAP) in any manner materially adverse to the
interests of the Lenders without the prior written consent of the Required Lenders.
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Section 6.9 Limitation on Restricted Actions. |
The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any such Person to (a) pay dividends or make any other distributions to any Credit
Party on its Capital Stock or with respect to any other interest or participation in, or measured
by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party, (c) make
loans or advances to any Credit Party, (d) sell, lease or transfer any of its properties or assets
to any Credit Party, or (e) act as a US Guarantor or Foreign Guarantor and pledge its assets
pursuant to the Credit Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (a) (e) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit Agreement and the other
Credit Documents, (ii) applicable law, (iii) any document or instrument governing Indebtedness
incurred pursuant to Section 6.1(c) or 6.1(j); provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith or the
Foreign Subsidiary party thereto, or (iv) any Permitted Lien or any document or instrument
governing any Permitted Lien; provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien.
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Section 6.10 Restricted Payments. |
The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
declare, order, make or set apart any sum for or pay any Restricted Payment, except (a) any Person
may make dividends payable solely in the same class of Capital Stock of such Person, (b) any
Subsidiary may make dividends and distributions to the Company or any wholly-owned Subsidiary of
the Company, and (c) the Company may repurchase Capital Stock issued by it subject to the following
restrictions and limitations: both before and after giving effect to such repurchase of Capital
Stock, (i) no Default or Event of Default shall exist and be continuing, (ii) the Credit Parties
shall be in compliance with the Leverage Ratio set forth in Section 5.9(a) on a Pro Forma Basis
(but reduced by 0.25 to 1.00), and (iii) Liquidity shall be no less than $20,000,000.
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Section 6.11 Amendment of Subordinated Debt. |
The Credit Parties will not, nor will they permit any Subsidiary to, amend or modify or waive
(or permit the amendment, modification or waiver of), after the issuance thereof, any of the terms
of any Subordinated Debt if the effect of such amendment, modification or waiver would be (a) to
increase the principal amount due thereunder, (b) to shorten or accelerate the time of payment of
any amount due thereunder, (c) to increase the applicable interest rate or amount of any fees or
costs due thereunder, (d) to amend the subordination provisions, if any, thereunder (including any
of the definitions relating thereto), (e) to make any covenant therein more restrictive or add any
new covenant, (f) to grant any Lien, (g) to provide for any additional guarantor with respect
thereto unless such Person becomes a US Guarantor or Foreign Guarantor hereunder or (h) in the
determination of the Administrative Agent, be adverse in any other material respect to the rights
or interests of the Lenders. With respect to any Subordinated Debt, none of the Credit Parties
will breach or otherwise violate any of the subordination provisions applicable thereto, including
without limitation restrictions against payment of principal and interest and other amounts
thereon.
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Section 6.12 Sale Leasebacks. |
The Credit Parties will not, nor will they permit any Subsidiary to, directly or indirectly,
become or remain liable as lessee or as guarantor or other surety with respect to any lease,
whether an Operating lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (a) which any Credit Party or any Subsidiary has sold or
transferred or is to sell or transfer to a Person which is not a Credit Party or a Subsidiary or
(b) which any Credit Party or any Subsidiary intends to use for substantially the same purpose as
any other property which has been sold or is to be sold or transferred by a Credit Party or a
Subsidiary to another Person which is not a Credit Party or a Subsidiary in connection with such
lease.
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Section 6.13 No Further Negative Pledges. |
The Credit Parties will not, nor will they permit any Subsidiary to, enter into, assume or
become subject to any agreement prohibiting or otherwise restricting the creation or assumption of
any Lien securing the Credit Party Obligations upon any of their properties or assets, whether now
owned or hereafter acquired, or requiring the grant of any security for such obligation if security
is given to secure the Credit Party Obligations, except (a) pursuant to this Credit Agreement and
the other Credit Documents, (b) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 6.1(c) or 6.1(j); provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith or the
Foreign Subsidiary party thereto, (c) in connection with any Permitted Lien or any document or
instrument governing any Permitted Lien; provided that any such restriction contained
therein relates only to the asset or assets subject to such Permitted Lien, (d) customary
anti-assignment provisions contained in leases and licensing agreements entered into in the
ordinary course of business, (e) restrictions imposed by law, (f) customary restrictions contained
in agreements relating to the sale of a Subsidiary of the Company pending such sale, so long as
such restrictions and conditions apply only to such Subsidiary and such sale is permitted hereunder
and (g) restrictions imposed by any agreement relating to secured Indebtedness permitted by this
Credit Agreement if such restrictions apply only to the property or assets securing such
Indebtedness.
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Section 6.14 Operating Leases. |
The Credit Parties will not, nor will they permit any Subsidiary to, enter into, assume or
permit to exist any obligations for the payment of rent under Operating Leases which in the
aggregate for all such Persons would exceed $35,000,000 in any fiscal year.
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Section 6.15 Anti-Corruption Laws; Sanctions. |
(a) No part of the proceeds of the Loans or the Letters of Credits will be used,
directly or indirectly, in furtherance of an offer, payment, promise to pay, or
authorization of the payment or giving of money, or anything else of value, to any Person in
violation of the UK Bribery Act, the FCPA or any other applicable anti-corruption law or
otherwise for any payment that could constitute a violation of any applicable anti-bribery
law or anti-corruption law.
(b) The Borrowers will not, directly or indirectly, use the proceeds of the Loans or
the Letters of Credit, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other Person, (i) to fund any activities or business of
or with any Person, or in any country or territory, that, at the time of such funding, is,
or whose government is, the subject of Sanctions, or (ii) in any other manner that would
result in a violation of Sanctions by any Person (including any Person participating in the
Loans or Letters of Credit, whether as underwriter, advisor, investor, lender or otherwise).
ARTICLE VII.
EVENTS OF DEFAULT
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Section 7.1 Events of Default. |
An Event of Default shall exist upon the occurrence of any of the following specified events
(each an Event of Default):
(a) Payment. (i) Any Borrower shall fail to pay any principal on any Loan when
due in accordance with the terms hereof; or (ii) the Company shall fail to reimburse the
Issuing Lender for any LOC Obligations when due in accordance with the terms hereof; or
(iii) any Borrower shall fail to pay any interest on any Loan or any fee or other amount
payable hereunder when due in accordance with the terms hereof and such failure shall
continue unremedied for three (3) days; or (iv) or any US Guarantor shall fail to pay on the
US Guaranty or any Foreign Guarantor shall fail to pay on the Foreign Guaranty in respect of
any of the foregoing or in respect of any other Guaranty Obligations hereunder (after giving
effect to the grace period in clause (iii)); or
(b) Misrepresentation. Any representation or warranty made or deemed made
herein, in the Security Documents or in any of the other Credit Documents or which is
contained in any certificate, document or financial or other statement furnished at any time
under or in connection with this Credit Agreement shall (i) with respect to representations
and warranties that contain a materiality qualification, prove to have been incorrect, false
or misleading and (ii) with respect to representations and warranties that do not contain a
materiality qualification, prove to have been incorrect, false or misleading in any material
respect, in each case on or as of the date made or deemed made; or
(c) Covenant. (i) Any Credit Party shall fail to perform, comply with or
observe any term, covenant or agreement applicable to it contained in Section 5.1, 5.2,
5.4(a) (as such covenant relates to the Company only), Section 5.7(a), Section 5.9 or
Article VI hereof; or (ii) any Credit Party shall fail to comply with any other covenant
contained in this Credit Agreement or the other Credit Documents or any other agreement,
document or instrument among or between any Credit Party, the Administrative Agent and the
Lenders or executed by any Credit Party in favor of the Administrative Agent or the Lenders
(other than as described in Sections 7.1(a) or 7.1(c)(i) above), and in the event such
breach or failure to comply is capable of cure, is not cured within thirty (30) days of its
occurrence; or
(d) Cross Default. A Credit Party or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other than the Credit Party
Obligations) in a principal amount outstanding of at least $5,000,000 individually, or
$10,000,000 in the aggregate, for the Credit Parties and their Subsidiaries, beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any Indebtedness in a principal amount
outstanding of at least $5,000,000 individually, or $10,000,000 in the aggregate, for the
Credit Parties and their Subsidiaries, or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due prior to its
stated maturity; or (iii) breach or default under any Secured Hedging Agreement in an amount
exceeding $5,000,000 in the aggregate for the Credit Parties and their Subsidiaries; or
(e) Bankruptcy. (i) A Credit Party or any of its Subsidiaries (other than any
de minimus Foreign Subsidiary that is not a Foreign Credit Party) shall commence any case,
proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding up, liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator, examiner
or other similar official for it or for all or any substantial part of its assets, or a
Credit Party or any of its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against a Credit Party or any of its
Subsidiaries (other than any de minimus Foreign Subsidiary that is not a Foreign Credit
Party) any case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against a Credit Party or any of its Subsidiaries (other than
any de minimus Foreign Subsidiary that is not a Foreign Credit Party) any case, proceeding
or other action seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of their assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) a Credit Party or any of its
Subsidiaries (other than, with respect to any of acts set forth in clause (i) above, any de
minimus Foreign Subsidiary that is not a Foreign Credit Party) shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) a Credit Party or any of its
Subsidiaries (other than any de minimus Foreign Subsidiary that is not a Foreign Credit
Party) shall generally not, or shall be unable to, or shall admit in writing their inability
to, pay its debts as they become due; or
(f) Judgment. One or more judgments or decrees shall be entered against a
Credit Party or any of its Subsidiaries involving in the aggregate a liability (to the
extent not covered by insurance) of $1,000,000 or more and all such judgments or decrees
shall not have been paid and satisfied, vacated, discharged, stayed or bonded pending appeal
within 20 Business Days from the entry thereof.
(g) ERISA. (i) Any Person shall engage in any prohibited transaction (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
accumulated funding deficiency (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
(other than a Permitted Lien) shall arise on the assets of the Credit Parties or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) a
Credit Party, any of its Subsidiaries or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, any Multiemployer Plan or
(vi) any other similar event or condition shall occur or exist with respect to a Plan,
except to the extent any of the foregoing could not reasonably be expected to have a
Material Adverse Effect; or
(h) Change of Control. There shall occur a Change of Control; or
(i) Invalidity of Guaranty. At any time after the execution and delivery
thereof, the Guaranty, for any reason other than the satisfaction in full of all Credit
Party Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void, or any Credit Party shall contest the
validity or enforceability of the Guaranty or any Credit Document in writing or deny in
writing that it has any further liability, including with respect to future advances by the
Lenders, under any Credit Document to which it is a party; or
(j) Invalidity of Credit Documents. Any other Credit Document shall fail to be
in full force and effect or to give the Administrative Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be created thereby (except as
such documents may be terminated or no longer in force and effect in accordance with the
terms thereof, other than those indemnities and provisions which by their terms shall
survive) or any Lien shall fail to be a first priority, perfected Lien, subject to Permitted
Liens, on a material portion of the Collateral, other than by action of the Administrative
Agent or the Lenders; or
(k) Subordinated Debt. Any event of default shall occur and be continuing
under any Subordinated Debt or the subordination provisions contained in any Subordinated
Debt shall cease to be in full force and effect or to give the Lenders the rights, powers
and privileges purported to be created thereby.
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Section 7.2 Acceleration; Remedies. |
Upon the occurrence and during the continuance of an Event of Default, then, and in any such
event, (a) if such event is an Event of Default specified in Section 7.1(e) above, automatically
the Commitments shall immediately terminate and the Loans (with accrued interest thereon), and all
other amounts under the Credit Documents (including without limitation the maximum amount of all
contingent liabilities under Letters of Credit) shall immediately become due and payable, and (b)
if such event is any other Event of Default, any or all of the following actions may be taken: (i)
with the written consent of the Required Lenders, the Administrative Agent may, or upon the written
request of the Required Lenders, the Administrative Agent shall, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate; (ii) the
Administrative Agent may, or upon the written request of the Required Lenders, the Administrative
Agent shall, declare the Loans (with accrued interest thereon) and all other amounts owing under
this Credit Agreement and the Notes to be due and payable forthwith and direct the Company to pay
to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent
drawings under then outstanding Letters of Credit an amount equal to the maximum amount of which
may be drawn under Letters of Credit then outstanding, whereupon the same shall immediately become
due and payable; and/or (iii) with the written consent of the Required Lenders, the Administrative
Agent may, or upon the written request of the Required Lenders, the Administrative Agent shall,
exercise such other rights and remedies as provided under the Credit Documents and under applicable
law.
ARTICLE VIII.
THE AGENT
Each Lender and Issuing Lender hereby irrevocably designates and appoints HSBC to act on its
behalf as the Administrative Agent of such Lender under this Credit Agreement, and each such Lender
irrevocably authorizes HSBC, as the Administrative Agent for such Lender, to take such action on
its behalf under the provisions of this Credit Agreement and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms of this Credit
Agreement, together with such other powers as are reasonably incidental thereto. The provisions of
this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing
Lenders, and neither the Borrowers nor any other Credit Party shall have rights as a third-party
beneficiary of any of such provisions. It is understood and agreed that the use of the term
agent herein or in any other Credit Documents (or any other similar term) with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead such term is used as a
matter of market custom, and is intended to create or reflect only an administrative relationship
between contracting parties. In addition, in acting hereunder and in connection with the Notes,
the Administrative Agent shall act solely as an agent of the issuer and will not thereby assume any
obligations towards or relationship of agency or trust for or with any of the holders of the Notes
or any other third party.
Any entity into which the Administrative Agent in its individual capacity may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Administrative Agent in its individual capacity shall be a
party, or any corporation to which substantially all of the corporate trust business of the
Administrative Agent in its individual capacity may be transferred, shall be the Administrative
Agent under this Agreement without further action by any party hereto.
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Section 8.2 Delegation of Duties. |
The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Credit Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the loan facilities as well as
activities as Administrative Agent. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agents except to the extent that a court of competent
jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted
with gross negligence or willful misconduct in the selection of such sub-agents.
In relation to the Foreign Pledge Agreements governed by Swiss law, each present and future
Lender hereby authorizes the Administrative Agent:
(a) to (i) accept and execute in its name and for its account as its direct
representative (direkter Stellvertreter) any Swiss law pledge for the benefit of such Lender
and (ii) hold, administer and, if necessary, enforce any such security on behalf of each
relevant Lender which has the benefit of such security;
(b) to agree as its direct representative (direkter Stellvertreter) to amendments and
alterations to any Foreign Pledge Agreement governed by Swiss law;
(c) to effect as its direct representative (direkter Stellvertreter) any release of a
security created or evidenced or expressed to be created or evidenced under a Foreign Pledge
Agreement governed by Swiss law in accordance with this Agreement; and
(d) to exercise as its direct representative (direkter Stellvertreter) such other
rights granted to the Administrative Agent hereunder or under the relevant Foreign Pledge
Agreement governed by Swiss law.
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Section 8.3 Rights as a Lender. |
The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender and a holder of Notes as any other Lender and may exercise the same as
though it were not the Administrative Agent, and the term Lender or Lenders shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, own securities of, act as the financial advisor or in any
other advisory capacity for, and such Person, its Affiliates, and its officers, directors and
employees may generally engage in any kind of business with, the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent hereunder or affiliated
with the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
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Section 8.4 Exculpatory Provisions. |
(a) Neither the Administrative Agent nor any of its officers, directors, employees,
agents, attorneys in fact, Subsidiaries or affiliates shall be (i) liable to any Lender for
any action lawfully taken or omitted to be taken by it or such Person under or in connection
with this Credit Agreement (except for its or such Persons own gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and nonappealable
judgment) or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Credit Party or any officer thereof
contained in this Credit Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent under or in
connection with, this Credit Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any of the Credit Documents or for any failure
of any Credit Party to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance by any Credit Party of any of the agreements contained in, or
conditions of, this Credit Agreement, or to inspect the properties, books or records of any
Credit Party.
Without limiting the generality of the foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing;
(ii) shall not (x) have any duty to expend or risk any of its own funds or
otherwise incur any liability, financial or otherwise, in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers or (y) have
any duty to take any discretionary action or exercise any discretionary powers
except (with respect to this clause (y)) discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for herein
or in the other Credit Documents); provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is contrary to any
Credit Document or applicable law or any regulation or fiscal requirement, court
order, or the rules, operating procedures or market practice of any relevant stock
exchange or any other applicable market or clearing system, including for the
avoidance of doubt any action that may be in violation of the automatic stay under
any Debtor Relief Law or that may effect a forfeiture, modification or termination
of property of a Defaulting Lender in violation of any Debtor Relief Law and
provided further that if any applicable law or any regulation or fiscal
requirement, court order, or the rules, operating procedures or market practice of
any relevant stock exchange or any other applicable market or clearing system shall
require the Administrative Agent to take any action, the Administrative Agent shall
be permitted to take such action; and
(iii) shall not, except as expressly set forth herein and in the other Credit
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any
of its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 9.1 and 7.2) or (ii) in the absence of its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction by final and nonappealable
judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or
Event of Default unless and until notice describing such Default or Event of Default is
given to the Administrative Agent in writing by a Credit Party, a Lender or an Issuing
Lender.
(c) The Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in connection with
this Agreement or any other Credit 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 or the occurrence of any Default or Event of Default,
(iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other
Credit Document or any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
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Section 8.5 Reliance by Administrative Agent. |
(a) The Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any instruction, notice, request, order, certificate, consent,
statement, instrument, resolution, direction, affidavit, document or other writing
(including any electronic message, Internet or intranet website posting, telex cable or
other paper, document or electronic distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall not incur any liability for relying thereon.
In determining compliance with any condition hereunder to the making of a Loan, or the
issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender or an Issuing Lender, the Administrative Agent may
presume that such condition is satisfactory to such Lender or Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender or Issuing
Lender prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers),
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.
(b) For purposes of determining compliance with the conditions specified in Section
4.1, each Lender that has signed this Credit Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.
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Section 8.6 Non Reliance on Administrative Agent and Other Lenders. |
Each Lender and Issuing Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties 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 and Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties 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 Credit Document or any related agreement or any document furnished
hereunder or thereunder.
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Section 8.7 Indemnification. |
The Lenders agree to indemnify and hold harmless the Administrative Agent, the Issuing Lender
and their Affiliates and their respective officers, directors, representatives, agents and
employees (to the extent not reimbursed by the Borrowers and without limiting the obligation of the
Borrowers to do so), ratably according to their respective Revolving Commitment Percentages in
effect on the date on which indemnification is sought under this Section, from and against any and
all liabilities, obligations, losses, damages, penalties, stamp or other similar taxes, actions,
judgments, suits, costs, expenses (including reasonable attorneys fees and expenses) or
disbursements of any kind whatsoever, regardless of their merit, which may at any time (including,
without limitation, at any time following the payment of the Credit Party Obligations) be demanded,
claimed, imposed on, incurred by or asserted against any such indemnitee in any way directly or
indirectly relating to or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by any such indemnitee under or in connection with any of the foregoing, including
without limitation all reasonable costs required to be associated with claims for damages to
persons or property and reasonable attorneys and consultants fees and expenses and court costs;
provided, however, that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from such indemnitees gross negligence or willful
misconduct, as determined by a court of competent jurisdiction. In no event shall the Agent be
liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including but not limited to loss of profit, goodwill, reputation, business opportunity or
anticipated saving), even if the Agent has been advised as to the likelihood of such loss or damage
and regardless of the form of action. The agreements in this Section 8.7 shall survive the
termination of this Credit Agreement and payment of the Notes and all other amounts payable
hereunder and shall also survive, as to any Administrative Agent, the resignation or removal of
such Administrative Agent.
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Section 8.8 Resignation of Administrative Agent. |
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders, the Issuing Lenders and the Company. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, subject to the approval of the
Company, with such approval not to be unreasonably withheld or delayed, to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any
such bank with an office in the United States; provided, however, that if an Event
of Default should exist at such time, no approval of the Company shall be required
hereunder. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation (or such earlier day as shall be agreed by the Required
Lenders) (the Resignation Effective Date), then the retiring Administrative Agent
may (but shall not be obligated to), on behalf of the Lenders and the Issuing Lenders,
appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that in no event shall any such successor Administrative Agent be a
Defaulting Lender. Whether or not a successor has been appointed, such resignation shall
become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by
applicable law, by notice in writing to the Company and such Person remove such Person as
Administrative Agent and, subject to the approval of the Company, with such approval not to
be unreasonably withheld or delayed, appoint a successor; provided, however, that if
an Event of Default should exist at such time, no approval of the Company shall be required
hereunder. If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days (or such earlier day as shall be agreed
by the Required Lenders) (the Removal Effective Date), then such removal shall
nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (i) the retiring or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Credit Documents and (ii) except for
any indemnity payments owed to the retiring or removed Administrative Agent, all payments,
communications and determinations provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender and Issuing Lender directly, until such
time, if any, as the Required Lenders appoint a successor Administrative Agent as provided
for above. Upon the acceptance of a successors appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring or removed Administrative Agent (other than any rights
to indemnity payments owed to the retiring or removed Administrative Agent), and the
retiring or removed Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents. The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor. After the
retiring or removed Administrative Agents resignation or removal hereunder and under the
other Credit Documents, the provisions of this Article and Sections 2.17 and 9.5 shall
continue in effect for the benefit of such retiring or removed Administrative 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 the retiring or removed Administrative Agent was acting as
Administrative Agent.
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Section 8.9 Nature of Duties; Several Obligations. |
Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers,
Documentation Agents or Syndication Agents listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Credit Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Lender hereunder. In
the event there are two or more Administrative Agents at any time hereunder, each Administrative
Agents obligations hereunder shall be several and not joint.
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Section 8.10 Administrative Agent May File Proofs of Claims. |
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the
principal of any Loan or LOC Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrowers) shall be entitled and empowered (but not obligated) by intervention in
such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, LOC Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the Issuing Lenders, the Swingline Lender and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the
Issuing Lenders, the Swingline Lender and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders, the Issuing Lenders, the Swingline Lender and the
Administrative Agent under Sections 2.5, 2.17 and 9.5) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and Issuing Lender to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the Issuing Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.5, 2.17 and 9.5.
(a) The Lenders and the Issuing Lenders irrevocably authorize the Administrative Agent,
at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the
Administrative Agent under any Credit Document (x) upon termination of all
Commitments and payment in full of all Credit Party Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (y) that is sold or otherwise disposed of or to be sold or
otherwise disposed of as part of or in connection with any sale or other disposition
permitted under the Credit Documents, or (z) subject to Section 9.1, if approved,
authorized or ratified in writing by the Required Lenders; and
(iii) to release any Guarantor from its obligations under its Guaranty if such
Person ceases to be a Subsidiary as a result of a transaction permitted under the
Credit Documents.
In addition, the Administrative Agent shall release the pledge of any first-tier Foreign
Subsidiary of a US Credit Party to the extent that such Foreign Subsidiary ceases to be a
first-tier Foreign Subsidiary.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm
in writing the Administrative Agents authority to release its interest in particular types
or items of property, or to release any Guarantor from its obligations under it Guaranty
pursuant to this Section 8.11.
(b) The Administrative Agent shall not be responsible for or have a duty to ascertain
or inquire into any representation or warranty regarding the existence, value or
collectability of the Collateral, the existence, priority or perfection of the
Administrative Agents Lien thereon, or any certificate prepared by any Credit Party in
connection therewith, nor shall the Administrative Agent be responsible or liable to the
Lenders for any failure to monitor or maintain any portion of the Collateral.
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Section 8.12 Force Majeure. |
The Administrative Agent shall not incur any liability for not performing any act or
fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the
control of the Administrative Agent (including but not limited to any act or provision of any
present or future law or regulation or governmental authority, any act of God or war, civil
unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of
the Federal Reserve Bank wire or facsimile or other wire or communication facility).
ARTICLE IX.
MISCELLANEOUS
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Section 9.1 Amendments, Waivers and Release of Collateral. |
Neither this Credit Agreement nor any of the other Credit Documents, nor any terms hereof or
thereof may be amended, supplemented, waived or modified (by amendment, waiver, consent or
otherwise) except in accordance with the provisions of this Section nor may Collateral be released
except as specifically provided herein or in the Security Documents or in accordance with the
provisions of this Section 9.1. The Required Lenders may, or with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (x) enter into with the Credit
Parties written amendments, supplements or modifications hereto and to the other Credit Documents
for the purpose of adding any provisions to this Credit Agreement or the other Credit Documents or
changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder
or (b) waive or consent to the departure from, on such terms and conditions as the Required Lenders
may specify in such instrument, any of the requirements of this Credit Agreement or the other
Credit Documents or any Default or Event of Default and its consequences; provided,
however, that no such amendment, supplement, modification, release, waiver or consent shall:
(i) reduce the amount or extend the scheduled date of maturity of any Loan or
Note or any installment thereon, or reduce the stated rate of any interest or fee
payable hereunder (except in connection with a waiver of interest at the increased
post-default rate set forth in Section 2.9 which shall be determined by a vote of
the Required Lenders) or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lenders Commitment, in
each case without the written consent of each Lender directly affected thereby;
provided that, it is understood and agreed that (x) any reduction in the
stated rate of interest on Revolving Loans shall only require the written consent of
each Lender holding a Revolving Commitment and (y) any reduction in the stated rate
of interest on Term Loans shall only require the written consent of each Lender
holding a Term Commitment or Term Loan; or
(ii) amend, modify or waive any provision of this Section 9.1 or reduce the
percentage specified in the definition of Required Lenders, without the written
consent of all the Lenders; or
(iii) amend, modify or waive any provision of Article VIII without the written
consent of the then Administrative Agent; or
(iv) except as provided in Section 8.11, release a Borrower or all or
substantially all of the Guarantors from their obligations under the Foreign
Guaranty or the US Guaranty, as applicable, without the written consent of all of
the Lenders; or
(v) release all or substantially all of the Collateral, without the written
consent of all of the Lenders; or
(vi) permit the Borrowers to assign or transfer any of their rights or
obligations under this Credit Agreement or other Credit Documents; or
(vii) amend, modify or waive any provision of the Credit Documents affecting
the rights or duties of the Administrative Agent, the Issuing Lender or the
Swingline Lender under any Credit Document without the written consent of the
Administrative Agent, the Issuing Lender and/or the Swingline Lender, as applicable,
in addition to the Lenders required hereinabove to take such action; or
(viii) amend or modify the definition of Credit Party Obligations to delete or
exclude any obligation or liability described therein without the written consent of
each Lender directly affected thereby; or
(ix) amend, modify or waive the order in which Credit Party Obligations are
paid in Section 2.12(b) without the written consent of each Lender directly affected
thereby; or
(x) amend, modify or waive any provision that would adversely affect the rights
of Lenders holdings Loans of any class differently than those holding Loans of any
other class without the written consent of Lenders representing a majority in
interest of each affected class.
Any such waiver, amendment, supplement or modification and any such release shall apply
equally to each of the Lenders and shall be binding upon the Borrowers, the other Credit Parties,
the Lenders, the Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrowers, the other Credit Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the outstanding Loans and Notes
and other Credit Documents, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
Notwithstanding any of the foregoing to the contrary, the consent of the Borrowers and the
other Credit Parties shall not be required for any amendment, modification or waiver of the
provisions of Article VIII (other than the provisions of Sections 8.8 and 8.11).
Notwithstanding the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on
any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions
set forth herein and (y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
(a) Except as otherwise provided in Article II, all notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made (i) when delivered by hand, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out herein, (iii) the Business Day immediately following
the day on which the same has been delivered prepaid (or pursuant to an invoice arrangement)
to a reputable national overnight air courier service, or (iv) the third Business Day
following the day on which the same is sent by certified or registered mail, postage
prepaid, in each case, addressed as follows in the case of the Company, the other Credit
Parties and the Administrative Agent, and, with respect to each Lender, as set forth in such
Lenders Administrative Details Form, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the Notes:
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The Company
and the other
Credit Parties:
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Lionbridge Technologies, Inc.
1050 Winter Street
Waltham, MA 02451
Attention: Chief Financial Officer, Treasurer and General Counsel
Telecopier: (781) 434-6057
Telephone: (781) 434-6000 |
The Administrative
Agent:
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HSBC Bank USA, National Association
Corporate Trust & Loan Agency
452 Fifth Avenue
New York, NY 10018
Telecopier: 1-212-525-1300
Telephone: 1-212-525-1362 |
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with a copy to: |
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Goulston & Storrs PC
400 Atlantic Avenue
Boston, MA 02110-3333
Attn: Philip A. Herman, Esq.
Telecopier: (617) 574-7592
Telephone: (617) 482-1776 |
Notices delivered through electronic communications, to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or Issuing
Lender pursuant to Article II if such Lender or Issuing Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrowers may, in the discretion of each, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement), and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed receipt by the intended
recipient, at its e-mail address as described in the foregoing clause (i), of notification that
such notice or communication is available and identifying the website address therefor;
provided that, for both clauses (i) and (ii) above, if such notice, email or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platform.
(i) Each Credit Party agrees that the Administrative Agent may, but shall not
be obligated to, make the Communications (as defined below) available to the Issuing
Lenders and the other Lenders by posting the Communications on the Platform.
(ii) The Platform is provided as is and as available. The Agent Parties
(as defined below) do not warrant the adequacy of the Platform and expressly
disclaim liability for errors or omissions in the Communications. No warranty of
any kind, express, implied or statutory, including, without limitation, any warranty
of merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects, is made by any
Agent Party in connection with the Communications or the Platform. In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
Agent Parties) have any liability to the Borrowers or the other Credit
Parties, any Lender or any other Person or entity for damages of any kind,
including, without limitation, direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or otherwise)
arising out of the Borrowers, any Credit Partys or the Administrative Agents
transmission of communications through the Platform. Communications
means, collectively, any notice, demand, communication, information, document or
other material provided by or on behalf of any Credit Party pursuant to any Credit
Document or the transactions contemplated therein which is distributed to the
Administrative Agent, any Lender or any Issuing Lender by means of electronic
communications pursuant to this Section, including through the Platform.
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Section 9.3 No Waiver; Cumulative Remedies. |
No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
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Section 9.4 Survival of Representations and Warranties. |
All representations and warranties made hereunder and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Credit Agreement and the Notes and the making of the Loans, provided that
all such representations and warranties shall terminate on the date upon which the Commitments have
been terminated and all amounts owing hereunder and under any Notes have been paid in full.
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Section 9.5 Expenses; Indemnity; Damage Waiver. |
(a) Costs and Expenses. The Borrowers shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable
out-of-pocket fees, charges and disbursements of counsel for the Administrative Agent), in
connection with the syndication of the loan facilities contemplated hereby, the preparation,
negotiation, execution, delivery and administration of this Agreement and the other Credit
Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether
or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or any Issuing Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or any Issuing Lender), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Credit Documents, including its rights under
this Section, or (B) 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) Indemnification by the Borrowers. The Borrowers, jointly and severally, shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Issuing
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 fees, charges and disbursements of any
counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any
Person (including any Borrower or any other Credit Party) other than such Indemnitee and its
Related Parties arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder
or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by
any Issuing Lender 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 any Borrower or any of its Subsidiaries, or any liability under any
Environmental Law related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by a
Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by a
Borrower or any other Credit Party against an Indemnitee for breach in bad faith of such
Indemnitees obligations hereunder or under any other Credit Document, if such Borrower or such
Credit Party has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction. This Section 9.5(b) shall not apply with respect
to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim.
(c) Reimbursement by Lenders. To the extent that the Borrowers for any reason fail to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by them
to the Administrative Agent (or any sub-agent thereof), any Issuing Lender, any Swingline Lender or
any Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), such Issuing Lender, such Swingline Lender or such
Related Party, as the case may be, such Lenders pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on each Lenders share of the
Loans and Commitments at such time) of such unpaid amount (including any such unpaid amount in
respect of a claim asserted by such Lender); provided that with respect to such unpaid
amounts owed to any Issuing Lender or Swingline Lender solely in its capacity as such, only the
Revolving Lenders shall be required to pay such unpaid amounts, such payment to be made severally
among them based on such Revolving Lenders pro rata share of the Revolving Commitments (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought)
provided, further, that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), such Issuing Lender or any such Swingline Lender in
connection with such capacity. The obligations of the Lenders under this paragraph (c) are several
and not joint.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, none of the Borrowers shall assert, and each of the Borrowers 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, any other Credit Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit, or the use
of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Credit Documents or the transactions contemplated
hereby or thereby, in the absence of gross negligence or willful misconduct as determined by a
court of competent jurisdiction by final and nonappealable judgment.
(e) Payments. All amounts due under this Section shall be payable not later than five
(5) Business Days after demand therefor.
(f) Survival. Each partys obligations under this Section shall survive the
termination of the Credit Documents and payment of the Credit Party Obligations hereunder.
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Section 9.6 Successors and Assigns; Participations; Purchasing Lenders. |
(a) This Credit Agreement shall be binding upon and inure to the benefit of the Credit
Parties, the Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Credit Parties may not assign or transfer
any of their rights or obligations under this Credit Agreement or the other Credit Documents
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in accordance with
applicable law, without the consent of, or notice to the Borrower or the Administrative
Agent, at any time sell to one or more banks or other entities (Participants), but
not to entities prohibited to receive assignments under Section 9.6(c)(iv), participating
interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of
such Lender, or any other interest of such Lender hereunder. In the event of any such sale
by a Lender of participating interests to a Participant, such Lenders obligations under
this Credit Agreement to the other parties to this Credit Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such Lender shall
remain the holder of any such Note for all purposes under this Credit Agreement, and the
Company, the Administrative Agent, the Issuing Lender and the Swingline Lender shall
continue to deal solely and directly with such Lender in connection with such Lenders
rights and obligations under this Credit Agreement. For the avoidance of doubt, each Lender
shall be responsible for the indemnity under Section 8.7 with respect to any payments made
by such Lender to its Participant(s). No Lender shall transfer or grant any participation
under which the Participant shall have rights to approve any amendment to or waiver of this
Credit Agreement or any other Credit Document except to the extent such amendment or waiver
would (i) extend the scheduled maturity of any Loan or Note or any installment thereon in
which such Participant is participating, or reduce the stated rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of interest at the
increased post-default rate set forth in Section 2.9 which shall be determined by a vote of
the Required Lenders) or reduce the principal amount thereof, or increase the amount of the
Participants participation over the amount thereof then in effect; provided that,
it is understood and agreed that (A) a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and (B) an increase in any
Commitment or Loan shall be permitted without consent of any participant if the
Participants participation is not increased as a result thereof, (ii) except as provided in
Section 8.11, release a Borrower or all or substantially all of the Guarantors from their
obligations under the US Guaranty or the Foreign Guaranty, as applicable, (iii) release all
or substantially all of the Collateral, or (iv) consent to the assignment or transfer by the
Borrowers of any of their rights and obligations under this Credit Agreement. In the case
of any such participation, the Participant shall not have any rights under this Credit
Agreement or any of the other Credit Documents (the Participants rights against such Lender
in respect of such participation to be those set forth in the agreement executed by such
Lender in favor of the Participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not sold such participation;
provided that each Participant shall be entitled to the benefits of Sections 2.16,
2.17, 2.18 and 9.5 (subject to the requirements and limitations therein, including the
requirements under Section 2.18 (it being understood that the documentation required under
Section 2.18 shall be delivered to the participating Lender)) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this
Section; provided, further that such Participant (A) agrees to be subject to the
provisions of Sections 2.18(c) and 2.20 as if it were an assignee under paragraph (c) of
this Section; and (B) shall not be entitled to receive any greater payment under Sections
2.16 or 2.18, with respect to any participation, than its participating Lender would have
been entitled to receive if the participating Lender were still the owner of such interest
as of the date of such Change in Law . Each Lender that sells a participation agrees, at
the Companys request and expense, to use reasonable efforts to cooperate with the Borrowers
to effectuate the provisions of Section 2.20 with respect to any Participant. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.7(b)
as though it were a Lender; provided that such Participant agrees to be subject to
Section 9.7(a) as though it were a Lender.
(c) Any Lender may, in accordance with applicable law, at any time, sell or assign to
any Lender or any Affiliate or Approved Fund thereof and to one or more additional banks,
insurance companies, financial institutions, investment funds or other entities
(Purchasing Lenders), all or any part of its rights and obligations under this
Credit Agreement and the Notes (including all or a portion of its Commitment and the Loans
at the time owing to it) in minimum amounts of (x) $5,000,000 with respect to its Revolving
Commitment and its Revolving Loans (or, if less, the entire amount of such Lenders
Revolving Commitment and Revolving Loans), and (y) $1,000,000 in the case of Term Loans, and
in each such case, subject to the following conditions:
(i) Such assignment shall be pursuant to an Assignment Agreement, executed by
such Purchasing Lender, such transferor Lender, the Administrative Agent and the
Company (to the extent required) and delivered to the Administrative Agent for its
acceptance and recording in the Register,
(ii) any assignment shall require the consent of the Administrative Agent, the
Issuing Lender and the Swingline Lender (such consent not to be unreasonably
withheld or delayed) for assignments in respect of the Revolving Loans or any
unfunded Commitment to any Person who is not a Lender, an Affiliate of a Lender or
an Approved Fund,
(iii) so long as no Default or Event of Default shall have occurred and be
continuing, any sale or assignment of all or any portion of the Revolving Loans,
Term Loans, a Term Loan Commitment or a Revolving Loan Commitment shall require the
consent of the Company, provided, however. that any sale or assignment to an
existing Lender, or Affiliate or Approved Fund thereof, shall not require the
consent of the Company nor shall any such sale or assignment be subject to the
minimum assignment amounts specified herein, and provided further that the
Company shall be deemed to have consented to any such assignment unless it shall
object thereto by written notice to the Administrative Agent within five (5)
Business Days after having received notice thereof.
(iv) No assignment of any Loans or Commitment shall be made to (A) any Borrower
or any of the Borrowers Affiliates or Subsidiaries, or (B) to any Defaulting Lender
or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute a Defaulting Lender or a Subsidiary thereof, or (C) to a natural
Person (or a holding company, investment vehicle or trust for, or owned and operated
for the primary benefit of, a natural Person).
(v) Upon such execution, delivery, acceptance and recording, from and after the
Transfer Effective Date specified in such Assignment Agreement, and subject to the
other terms and conditions hereof, (1) the Purchasing Lender thereunder shall be a
party hereto and, to the extent provided in such Assignment Agreement, have the
rights and obligations of a Lender hereunder with a Commitment as set forth therein,
and (2) the transferor Lender thereunder shall, to the extent provided in such
Assignment Agreement, be released from its obligations under this Credit Agreement
(and, in the case of an Assignment Agreement covering all or the remaining portion
of a transferor Lenders rights and obligations under this Credit Agreement, such
transferor Lender shall cease to be a party hereto; provided, however, that
such Lender shall continue to be entitled to any rights under Sections 2.16, 2.17,
2.18 and 9.5 with respect to facts and circumstances occurring prior to the
effective date of such assignment), and provided further that, except to the extent
otherwise expressly agreed to by the affected parties, no assignment by a Defaulting
Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lenders having been a Defaulting Lender. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph 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 (b) of this Section. Such Assignment Agreement shall be deemed to amend
this Credit Agreement to the extent, and only to the extent, necessary to reflect
the addition of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a portion
of the rights and obligations of such transferor Lender under this Credit Agreement
and the Notes. On or prior to the Transfer Effective Date specified in such
Assignment Agreement, the Borrowers, at their own expense, shall execute and deliver
to the Administrative Agent in exchange for the Notes delivered to the
Administrative Agent pursuant to such Assignment Agreement new Notes to the order of
such Purchasing Lender in an amount equal to the Commitment assumed by it pursuant
to such Assignment Agreement and, unless the transferor Lender has not retained a
Commitment hereunder, new Notes to the order of the transferor Lender in an amount
equal to the Commitment retained by it hereunder. Such new Notes shall be dated the
Closing Date and shall otherwise be in the form of the Notes replaced thereby.
(vi) Certain Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such assignment shall
be effective unless and until, in addition to the other conditions thereto set forth
herein, the parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution thereof as
appropriate (which may be outright payment, purchases by the assignee of
participations or subparticipations, or other compensating actions, including
funding, with the consent of the Company and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent, each Issuing Lender,
each Swingline Lender and each other Lender hereunder (and interest accrued
thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all
Loans and participations in Letters of Credit and Swingline Loans in accordance with
its pro rata share thereof. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become
effective under applicable law without compliance with the provisions of this
paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.
(d) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent
of the Borrowers, shall maintain at its address referred to in Section 9.2 a copy of each
Assignment Agreement delivered to it and a register (the Register) for the
recordation of the names and addresses of the Lenders and the Commitment of, and principal
amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof
from time to time. A Loan (and the related Note) recorded on the Register may only be
assigned or sold in whole or in part upon registration of such assignment or sale on the
Register. The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender for all
purposes of this Credit Agreement. The Register shall be available for inspection by the
Company or any Lender at any reasonable time and from time to time upon reasonable prior
notice. In the event that any Lender sells participations in a Loan recorded on the
Register, such Lender, acting solely for this purpose as a non-fiduciary agent of the
Borrowers, shall maintain a register on which it enters the name and address of each
participant in such Loans held by it and the principal amounts (and stated interest) of each
participants interest in the Loans or other obligations under the Credit Documents (the
Participant Register), provided that no Lender shall have any obligation
to disclose all or any portion of the Participant Register (including the identity of any
participant or any information relating to a participants interest in any commitments,
loans, letters of credit or its other obligations under any Credit Document) to any Person
except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c)
of the United States Treasury Regulations.. A Loan recorded on the Register (and the
registered Note, if any, evidencing the same) may be participated in whole or in part only
by registration of such participation on the Participant Register (and each registered Note
shall expressly so provide). Any participation of such Loan recorded on the Register (and
the registered Note, if any, evidencing the same) may be effected only by the registration
of such participation on the Participant Register. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of such participation for all
purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt, (i) the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register, and (ii) the Administrative Agent may
treat the holder in whose name a Note is registered as the owner of such Note for all
purposes, whether or not such Note is overdue, and the Administrative Agent shall not be
affected by notice to the contrary except as required by applicable law.
(e) Upon its receipt of a duly executed Assignment Agreement, together with payment to
the Administrative Agent by the transferor Lender or the Purchasing Lender, as agreed
between them, of a registration and processing fee of $3,500 (which registration and
processing fee shall not be payable in connection with an assignment to an Affiliate) for
each Purchasing Lender listed in such Assignment Agreement and the Notes subject to such
Assignment Agreement, the Administrative Agent shall (i) accept such Assignment Agreement,
(ii) record the information contained therein in the Register and (iii) give prompt notice
of such acceptance and recordation to the Lenders and the Company.
(f) The Borrowers authorize each Lender to disclose to any Participant or Purchasing
Lender (each, a Transferee) and any prospective Transferee any and all financial
information in such Lenders possession concerning the Company and its Subsidiaries which
has been delivered to such Lender by or on behalf of the Borrowers pursuant to this Credit
Agreement or which has been delivered to such Lender by or on behalf of the Borrowers in
connection with such Lenders credit evaluation of the Borrowers and their Affiliates prior
to becoming a party to this Credit Agreement, in each case subject to Section 9.15.
(g) At the time of each assignment pursuant to this Section 9.6 to a Person which is
not already a Lender hereunder, the respective assignee Lender shall provide to the Company
and the Administrative Agent the appropriate Internal Revenue Service Forms described in
Section 2.18.
(h) Nothing herein shall prohibit any Lender from pledging or assigning any of its
rights under this Credit Agreement (including, without limitation, any right to payment of
principal and interest under any Note) to secure obligations of such Lender, including
without limitation, any pledge or assignment to secure obligations to a Federal Reserve
Bank, and such pledge and assignment may be made without the consent of the Borrowers;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(i) Notwithstanding anything to the contrary contained in this Agreement, any Lender
may exchange, continue or rollover all or a portion of its Loans in connection with any
refinancing, extension, loan modification or similar transaction permitted by the terms of
this Agreement, pursuant to a cashless settlement mechanism approved by the Company, the
Administrative Agent and such Lender.
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Section 9.7 Adjustments; Set off; Sharing of Payments by Lenders. |
(a) Sharing of Payments. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or other obligations hereunder resulting in such Lender
receiving payment of a proportion of the aggregate amount of its Loans and accrued interest
thereon or other such obligations greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations
in the Loans and such other obligations of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest
on their respective Loans and other amounts owing them; 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; and
(ii) the provisions of this paragraph shall not be construed to apply to
(x) any payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement (including the application of funds arising from the
existence of a Defaulting Lender), or (y) 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 LOC Obligations to any assignee or participant, other than to
the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph
shall apply).
Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do
so under applicable law, that (subject to Section 9.7(b)) any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against each Credit Party
rights of setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of each Credit Party in the amount of such participation.
(b) Right of Setoff. In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of set-off), each Lender shall
have the right, at any time and from time to time, to the fullest extent permitted by
applicable law, without prior notice to the Borrowers or the applicable Credit Party, any
such notice being expressly waived by the Credit Parties to the extent permitted by
applicable law, upon the occurrence of any Event of Default, to setoff and appropriate and
apply any and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at any time held
by or owing to such Lender , such Issuing Lender or any such Affiliate or any branch or
agency thereof to or for the credit or the account of the Borrowers or any other Credit
Party, or any part thereof in such amounts as such Lender may elect, against and on account
of the Loans and other Credit Party Obligations of the Borrowers and the other Credit
Parties to the Administrative Agent and the Lenders and claims of every nature and
description of the Administrative Agent and the Lenders against the Borrowers and the other
Credit Parties, in any currency, whether arising hereunder, under any other Credit Document
or any Secured Hedging Agreement pursuant to the terms of this Credit Agreement, as such
Lender may elect, whether or not the Administrative Agent or the Lenders have made any
demand for payment and although such obligations, liabilities and claims may be contingent
or unmatured or are owed to a branch, office or Affiliate of such Lender or such Issuing
Lender different from the branch, office or Affiliate holding such deposit or obligated on
such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately
to the Administrative Agent for further application in accordance with the provisions of
Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative Agent, the
Issuing Lenders, and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the Credit Party
Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
The aforesaid right of set-off may be exercised by such Lender against the Borrowers, any
other Credit Party or against any trustee in bankruptcy, debtor in possession, assignee for
the benefit of creditors, receiver or execution, judgment or attachment creditor of the
Borrowers or any other Credit Party, or against anyone else claiming through or against the
Borrowers, any other Credit Party or any such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have been exercised
by such Lender prior to the occurrence of any Event of Default. The rights of each Lender,
each Issuing Lender and their respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender, such Issuing
Lender or their respective Affiliates may have. Each Lender agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. Notwithstanding the terms of this Section to the
contrary, each of the Lenders and the Administrative Agent acknowledge and agree that it
will not set-off any account of any Foreign Borrower to repay Credit Party Obligations of a
US Credit Party.
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Section 9.8 Table of Contents and Section Headings. |
The table of contents and the Section and subsection headings herein are intended for
convenience only and shall be ignored in construing this Credit Agreement.
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Section 9.9 Counterparts; Integration; Effectiveness; Electronic Execution. |
(a) Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Credit Documents, and any separate letter agreements with respect to
fees payable to the Administrative Agent or the Arranger, 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 4.1, 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
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e.,
pdf or tif) format shall be effective as delivery of a manually executed counterpart of this
Agreement.
(b) Electronic Execution of Assignments. The words execution, signed,
signature, and words of like import in any Assignment Agreement shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
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Section 9.10 Effectiveness. |
This Credit Agreement shall become effective on the date on which all of the parties have
signed a copy hereof (whether the same or different copies) and shall have delivered the same to
the Administrative Agent pursuant to Section 9.2 or, in the case of the Lenders, shall have
given to the Administrative Agent written, telecopied or telex notice (actually received) at such
office that the same has been signed and mailed to it.
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Section 9.11 Severability. |
Any provision of this Credit Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
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Section 9.12 Integration. |
This Credit Agreement and the other Credit Documents represent the agreement of the Borrowers,
the other Credit Parties, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Borrowers, the other Credit Parties, or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or therein.
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Section 9.13 Governing Law. |
This Credit Agreement and the other Credit Documents and any claims, controversy, dispute or
cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating
to this Credit Agreement or any other Credit Document (except, as to any other Credit Document, as
expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed
by, and construed and interpreted in accordance with, the law of the State of New York without
regard to conflict of laws principles thereof (other than Sections 5-1401 and 5-1402 of The New
York General Obligations Law).
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Section 9.14 Consent to Jurisdiction and Service of Process. |
(a) Jurisdiction. The Borrowers and each other Credit Party irrevocably and
unconditionally agrees that it will not commence any action, litigation or proceeding of any
kind or description, whether in law or equity, whether in contract or in tort or otherwise,
against the Administrative Agent, any Lender, any Issuing Lender, or any Related Party of
the foregoing in any way relating to this Credit Agreement or any other Credit Document or
the transactions relating hereto or thereto, in any forum other than the courts 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, and each of the
parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts
and agrees that all claims in respect of any such action, litigation or proceeding may be
heard and determined in such New York State court or, to the fullest extent permitted by
applicable law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action, litigation 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. Notwithstanding the foregoing, in the event that the Borrowers or another Credit Party
are unable to pursue any action, litigation or proceeding in one of the forums set forth
above because the applicable Administrative Agent, Lender, Issuing Lender or Related Party
is not subject to the jurisdiction of the courts of such forum, then such Borrower or Credit
Party may bring such action, litigation or proceeding in the courts of a forum having
jurisdiction over such applicable counterparty. Nothing in this Agreement or in any other
Credit Document shall affect any right that the Administrative Agent, any Lender or any
Issuing Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Credit Document against the Borrower or any other Credit Party or its
properties in the courts of any jurisdiction.
(b) Waiver of Venue. Each Borrower and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of venue of any action or proceeding arising
out of or relating to this Credit Agreement or any other Credit Document 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 applicable law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Service of Process. Each party hereto irrevocably consents to service of
process in the manner provided for notices in Section 9.2. Nothing in this Agreement will
affect the right of any party hereto to serve process in any other manner permitted by
applicable law.
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Section 9.15 Confidentiality. |
Each of the Administrative Agent, the Issuing Lender and each of the Lenders agree to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its Related Parties (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); (b) to the extent required or requested by any regulatory
authority purporting to have jurisdiction over such Person or its Related Parties (including any
self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process;
(d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or
under any other Credit Document or any action or proceeding relating to this Agreement or any other
Credit Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights and obligations
under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap,
derivative or other transaction under which payments are to be made by reference to the Borrower
and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any
rating agency in connection with rating the Borrowers or their Subsidiaries or the Loans and
Revolving Credit Commitment or (ii) the CUSIP Service Bureau or any similar agency in connection
with the issuance and monitoring of CUSIP numbers with respect to the facilities contemplated by
this Agreement; (h) with the consent of the Company ; or (i) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes
available to the Administrative Agent, any Lender, any Issuing Lender or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrowers. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Agreement and information
about this Agreement to market data collectors, similar service providers to the lending industry
and service providers to the Administrative Agent and the Lenders in connection with the
administration of this Agreement, the other Credit Documents, and the Commitments.
For purposes of this Section, Information means all information received from the
Borrowers or any of their Subsidiaries relating to the Borrowers or any of their Subsidiaries or
any of their respective businesses, other than any such information that is available to the
Administrative Agent, any Lender or any Issuing Lender on a nonconfidential basis prior to
disclosure by a Borrower or any of its Subsidiaries of a Borrower. 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.
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Section 9.16 Acknowledgments. |
The Company and the other Credit Parties each hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of each
Credit Document;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to the Company or any other Credit Party arising out of or in connection with this
Credit Agreement and the relationship between the Administrative Agent and the Lenders, on
one hand, and the Company and the other Credit Parties, on the other hand, in connection
herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Company or the other Credit
Parties and the Lenders.
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Section 9.17 Waivers of Jury Trial; Waiver of Consequential Damages. |
THE BORROWERS, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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Section 9.18 Patriot Act Notice. |
Each Lender and the Administrative Agent (for itself and not on behalf of any other party)
hereby notifies the Company that, pursuant to the requirements of the USA Patriot Act, Title III of
Pub. L. 107-56, signed into law October 26, 2001 (the Patriot 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 the
Administrative Agent, as applicable, to identify the Borrowers in accordance with the Patriot Act.
Accordingly, each of the parties agrees to provide to the Administrative Agent upon its request
from time to time such identifying information and documentation as may be available for such party
in order to enable the Administrative Agent to comply with applicable law.
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Section 9.19 Release of Collateral. |
Each Lender hereby directs the Administrative Agent to release, and the Administrative Agent
agrees to release, any Lien held by it under the Security Documents on the Termination Date;
provided, however, that the Administrative Agent shall not be required to execute any such
document on terms which, in its opinion, would expose it to liability or create any obligation or
entail any consequence other than the release of such Liens without recourse or warranty.
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Section 9.20 Judgment Currency. |
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under any other Credit Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each of the Credit Parties in
respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under
the other Credit Documents shall, notwithstanding any judgment in a currency (the Judgment
Currency) other than Dollars, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such Lender of any sum adjudged to be so due in
the Judgment Currency, the Administrative Agent or such Lender may in accordance with normal
banking procedures purchase Dollars with the Judgment Currency. If the amount of Dollars so
purchased is less than the sum originally due to the Administrative Agent or such Lender in
Dollars, the Company agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or such Lender or the Person to whom such obligation was owing
against such loss. If the amount of Dollars so purchased is greater than the sum originally due to
the Administrative Agent or such Lender in such currency, the Administrative Agent and the Lenders
agree to apply such excess to any Credit Party Obligations then due and payable in accordance with
the terms of Section 2.12.
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Section 9.21 Foreign Subsidiary Restructuring. |
After the Closing Date, the Company intends to restructure its Foreign Subsidiaries to improve
corporate management efficiency, reduce expenses and minimize tax obligations. The reorganization
will be accomplished by consolidating the ownership of some of the Foreign Subsidiaries (including
possibly some Foreign Credit Parties). Therefore, notwithstanding any provision to the contrary
within this Credit Agreement, the Administrative Agent and the Lenders agree that the Credit
Parties shall be permitted, without seeking an amendment or waiver under this Credit Agreement, to
effect this restructuring by contributing, distributing, selling or otherwise transferring the
Capital Stock of certain existing Foreign Subsidiaries (including Foreign Credit Parties) to one or
more Foreign Subsidiaries; provided that (a) any Foreign Subsidiary that is a Foreign
Credit Party prior to such contribution, distribution, sale, merger or other transfer shall remain
a Foreign Credit Party after giving effect thereto, if still existing, and (b) if a Foreign Credit
Party existing prior to such contribution, distribution, sale, merger or other transfer does not
exist thereafter, the Foreign Subsidiary to which such Foreign Credit Party was contributed,
distributed, sold, merged or otherwise transferred shall join this Credit Agreement as a Foreign
Credit Party. The Administrative Agent and the Lenders further agree that they will, pursuant to
Section 8.11, release any existing pledges of Capital Stock of a Foreign Subsidiary that, after the
restructuring, is no longer a first-tier Foreign Subsidiary of the Company; provided,
however, that 65% of the voting Capital Stock of any first-tier Foreign Subsidiaries of the
Company, if any, resulting from such restructuring will be pledged to the Administrative Agent and
the Lenders.
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Section 9.22 Amendment and Restatement. |
This Credit Agreement amends and restates the Existing Agreement in its entirety. All loans
and advances evidenced by the Existing Agreement shall be deemed to be included in, and refinanced
by, the Loan pursuant to this Credit Agreement. All the obligations pursuant to the Existing
Agreement shall continue to be the obligations under this Credit Agreement and the other Credit
Documents. Nothing herein shall be a discharge of the loans and advances pursuant to the Existing
Agreement.
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Section 9.23 No Novation or Satisfaction. |
AT NO TIME SHALL THIS CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS CONSTITUTE, OR BE
DEEMED OR CONSTRUED TO CONSTITUTE, IN WHOLE OR IN PART, A NOVATION, SATISFACTION, RELEASE,
DISCHARGE OR TERMINATION (EXCEPT AS SET FORTH IN SEPARATE TERMINATION AGREEMENTS ENTERED INTO IN
CONNECTION WITH THIS CREDIT AGREEMENT) OF THE ORIGINAL LOAN OR THE CREDIT DOCUMENTS ENTERED INTO IN
CONNECTION WITH THE EXISTING AGREEMENT OR OF ANY OF THE LIENS AND SECURITY INTEREST CREATED
PURSUANT THERETO OR IN CONNECTION THEREWITH. INSTEAD, AT ALL TIMES, THIS CREDIT AGREEMENT AND THE
OTHER CREDIT DOCUMENTS SHALL CONSTITUTE, AND SHALL BE DEEMED AND CONSTRUED TO CONSTITUTE, A
CONTINUATION OF THE ORIGINAL LOAN AND THE CREDIT DOCUMENTS ENTERED INTO IN CONNECTION WITH THE
EXISTING AGREEMENT IN MODIFIED FORM AND A REAFFIRMATION OF THE CONTINUING EFFECTIVENESS OF ALL
LIENS AND SECURITY INTERESTS CREATED PURSUANT THERETO OR IN CONNECTION THEREWITH.
ARTICLE X.
US GUARANTY
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Section 10.1 The US Guaranty. |
In order to induce the Lenders to enter into this Credit Agreement and any Hedging Agreement
Provider to enter into any Secured Hedging Agreement with the Company or any of its Domestic
Subsidiaries and to extend credit hereunder and thereunder, and in recognition of the direct
benefits to be received by the US Guarantors from the Extensions of Credit hereunder and the
extensions of credit under any Secured Hedging Agreement, each of the US Guarantors hereby agrees
with the Administrative Agent and the Lenders as follows: each US Guarantor hereby unconditionally
and irrevocably jointly and severally guarantees as primary obligor and not merely as surety the
full and prompt payment when due, whether upon maturity, by acceleration or otherwise, of any and
all Credit Party Obligations of the Company and each Foreign Borrower. If any or all of the Credit
Party Obligations of the Company or any Foreign Borrower becomes due and payable, each US Guarantor
unconditionally promises to pay such Credit Party Obligations to the Administrative Agent, the
Lenders and the Hedging Agreement Providers, or order, on demand, together with any and all
reasonable expenses which may be incurred by the Administrative Agent, the Lenders or the Hedging
Agreement Providers in collecting any of such Credit Party Obligations. The US Guaranty set forth
in this Article X is a guaranty of timely payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, to the extent the obligations of a US Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the obligations of each such US
Guarantor hereunder shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the Bankruptcy Code).
Additionally, each of the US Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations of the Company and the Foreign
Borrowers to the Lenders and the Hedging Agreement Providers whether or not due or payable by the
Company upon the occurrence of any of the events specified in Section 7.1(e), and unconditionally
promises to pay such Credit Party Obligations to the Administrative Agent for the account of the
Lenders and to any such Hedging Agreement Provider, or order, on demand, in lawful money of the
United States. Each of the US Guarantors further agrees that to the extent that the Company, a US
Guarantor or a Foreign Borrower shall make a payment or a transfer of an interest in any property
to the Administrative Agent, any Lender or any Hedging Agreement Provider, which payment or
transfer or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise is avoided, and/or required to be repaid to the Company, a US Guarantor
or a Foreign Borrower, the estate of the Company, a US Guarantor or a Foreign Borrower, a trustee,
receiver or any other party under any bankruptcy law, state or federal law, common law or equitable
cause, then to the extent of such avoidance or repayment, the obligation or part thereof intended
to be satisfied shall be revived and continued in full force and effect as if said payment had not
been made.
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Section 10.3 Nature of Liability. |
The liability of each US Guarantor hereunder is exclusive and independent of any security for
or other guaranty of the Credit Party Obligations of the Company or a Foreign Borrower whether
executed by any such US Guarantor, any other guarantor or by any other party, and no US Guarantors
liability hereunder shall be affected or impaired by (a) any direction as to application of payment
by the Company, a Foreign Borrower or by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Credit
Party Obligations of the Company or a Foreign Borrower, (c) any payment on or in reduction of any
such other guaranty or undertaking, (d) any dissolution, termination or increase, decrease or
change in personnel by the Company, or (e) any payment made to the Administrative Agent, the
Lenders or any Hedging Agreement Provider on the Credit Party Obligations which the Administrative
Agent, such Lenders or such Hedging Agreement Provider repay the Company or a Foreign Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of the US Guarantors waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding.
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Section 10.4 Independent Obligation. |
The obligations of each US Guarantor hereunder are independent of the obligations of any other
US Guarantor, the Company or any Foreign Borrower, and a separate action or actions may be brought
and prosecuted against each US Guarantor whether or not action is brought against any other US
Guarantor, the Company or any Foreign Borrower and whether or not any other US Guarantor, the
Company or any Foreign Borrower is joined in any such action or actions.
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Section 10.5 Authorization. |
Each of the US Guarantors authorizes the Administrative Agent, each Lender and each Hedging
Agreement Provider without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder, from time to time to
(a) renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Credit Party Obligations or any part thereof in accordance with
this Credit Agreement, including any increase or decrease of the rate of interest thereon, (b) take
and hold security from any US Guarantor or any other party for the payment of the US Guaranty or
the Credit Party Obligations and exchange, enforce waive and release any such security, (c) apply
such security and direct the order or manner of sale thereof as the Administrative Agent and the
Lenders in their discretion may determine and (d) release or substitute any one or more endorsers,
US Guarantors, the Company, any Foreign Borrower or other obligors.
It is not necessary for the Administrative Agent, the Lenders or any Hedging Agreement
Provider to inquire into the capacity or powers of the Company, or any Foreign Borrower or the
officers, directors, members, partners or agents acting or purporting to act on its behalf, and any
Credit Party Obligations made or created in reliance upon the professed exercise of such powers
shall be guaranteed hereunder.
(a) Each of the US Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Administrative Agent, any Lender or
any Hedging Agreement Provider to (i) proceed against the Company, any other guarantor, any
Foreign Borrower or any other party, (ii) proceed against or exhaust any security held from
the Company, any other guarantor, any Foreign Borrower or any other party, or (iii) pursue
any other remedy in the Administrative Agents, any Lenders or any Hedging Agreement
Providers power whatsoever. Each of the US Guarantors waives any defense based on or
arising out of any defense of the Company, any other guarantor, any Foreign Borrower or any
other party other than payment in full of the Credit Party Obligations, including, without
limitation, any defense based on or arising out of the disability of the Company, any other
guarantor, any Foreign Borrower or any other party, or the unenforceability of the Credit
Party Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Company or any Foreign Borrower other than payment in full of the Credit
Party Obligations. The Administrative Agent may, at its election, foreclose on any security
held by the Administrative Agent by one or more judicial or nonjudicial sales (to the extent
such sale is permitted by applicable law), or exercise any other right or remedy the
Administrative Agent or any Lender may have against the Company, any Foreign Borrower or any
other party, or any security, without affecting or impairing in any way the liability of any
US Guarantor hereunder except to the extent the Credit Party Obligations have been paid in
full and the Commitments have been terminated. Each of the US Guarantors waives any defense
arising out of any such election by the Administrative Agent or any of the Lenders, even
though such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the US Guarantors against the Company, any Foreign
Borrower or any other party or any security.
(b) Each of the US Guarantors waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of the US Guaranty, and notices of the
existence, creation or incurring of new or additional Credit Party Obligations. Each US
Guarantor assumes all responsibility for being and keeping itself informed of the Companys
and any Foreign Borrowers financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Credit Party Obligations and the nature, scope
and extent of the risks which such US Guarantor assumes and incurs hereunder, and agrees
that neither the Administrative Agent nor any Lender shall have any duty to advise such US
Guarantor of information known to it regarding such circumstances or risks.
(c) Each of the US Guarantors hereby agrees it will not exercise any rights of
subrogation which it may at any time otherwise have as a result of the US Guaranty (whether
contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the claims of
the Lenders or any Hedging Agreement Provider against the Company, any Foreign Borrower or
any other guarantor of the Credit Party Obligations of the Company or any Foreign Borrower
owing to the Lenders or any such Hedging Agreement Provider (collectively, the Other
Parties) and all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may at any time otherwise have as a
result of the US Guaranty until such time as the Loans hereunder shall have been paid and
the Commitments have been terminated. Each of the US Guarantors hereby further agrees not
to exercise any right to enforce any other remedy which the Administrative Agent, the
Lenders or any Hedging Agreement Provider now has or may hereafter have against any Other
Party, any endorser or any other guarantor of all or any part of the Credit Party
Obligations of the Company and any benefit of, and any right to participate in, any security
or collateral given to or for the benefit of the Lenders and/or any such Hedging Agreement
Provider to secure payment of the Credit Party Obligations of the Company or any Foreign
Borrower until such time as the Loans hereunder shall have been paid and the Commitments
have been terminated.
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Section 10.8 Limitation on Enforcement. |
The Lenders and the Hedging Agreement Providers agree that this US Guaranty may be enforced
only by the action of the Administrative Agent acting upon the instructions of the Required Lenders
and that no Lender or Hedging Agreement Provider shall have any right individually to seek to
enforce or to enforce the US Guaranty, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent for the benefit of the Lenders under the terms of this
Credit Agreement and for the benefit of any Hedging Agreement Provider under any Secured Hedging
Agreement. The Lenders and the Hedging Agreement Providers further agree that this US Guaranty may
not be enforced against any director, officer, employee or stockholder of the US Guarantors.
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Section 10.9 Confirmation of Payment. |
The Administrative Agent and the Lenders will, upon request after payment in cash in full of
the Credit Party Obligations and obligations which are the subject of the US Guaranty and
termination of the Commitments relating thereto (excluding any continuing obligations under any
Secured Hedging Agreements, pooling agreements or cash management agreements), confirm to the
Company, any Foreign Borrower, the US Guarantors or any other Person that such Credit Party
Obligations and obligations have been paid and the Commitments relating thereto terminated, subject
to the provisions of Section 10.2, and shall release all Liens securing the Credit Party
Obligations.
ARTICLE XI.
FOREIGN GUARANTY; JOINT AND SEVERAL LIABILITY OF FOREIGN BORROWERS
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Section 11.1 The Foreign Guaranty. |
In order to induce the Lenders to enter into this Credit Agreement and to extend credit
hereunder, and in recognition of the direct benefits to be received by the Foreign Guarantors from
the Extensions of Credit to the Foreign Borrowers hereunder, each of the Foreign Guarantors
(including without limitation the Company, as set forth in the definition of Foreign Guarantors)
hereby agrees with the Administrative Agent and the Lenders as follows: each Foreign Guarantor
hereby unconditionally and irrevocably jointly and severally guarantees as primary obligor and not
merely as surety the full and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all Credit Party Obligations of the Foreign Borrowers. If any or all of the
Credit Party Obligations of any Foreign Borrower becomes due and payable, each Foreign Guarantor
unconditionally promises to pay such indebtedness to the Administrative Agent and the Lenders, or
order, on demand, together with any and all reasonable expenses which may be incurred by the
Administrative Agent or the Lenders in collecting any of such Credit Party Obligations. The
Foreign Guaranty set forth in this Article XI is a guaranty of timely payment and not of
collection.
Additionally, each of the Foreign Guarantors unconditionally and irrevocably guarantees
jointly and severally the payment of any and all Credit Party Obligations of the Foreign Borrowers
to the Lenders whether or not due or payable by the Foreign Borrowers upon the occurrence of any of
the events specified in Section 7.1(e), and unconditionally promises to pay such Credit Party
Obligations to the Administrative Agent for the account of the Lenders, or order, on demand, in
lawful money of the United States. Each of the Foreign Guarantors further agrees that to the
extent that any Foreign Borrower or a Foreign Guarantor shall make a payment or a transfer of an
interest in any property to the Administrative Agent or any Lender, which payment or transfer or
any part thereof is subsequently invalidated, declared to be fraudulent or preferential, or
otherwise is avoided, and/or required to be repaid to a Foreign Borrower or a Foreign Guarantor,
the estate of a Foreign Borrower or a Foreign Guarantor, a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent
of such avoidance or repayment, the obligation or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment had not been made.
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Section 11.3 Nature of Liability. |
The liability of each Foreign Guarantor hereunder is exclusive and independent of any security
for or other guaranty of the Credit Party Obligations of the Foreign Borrowers whether executed by
any such Foreign Guarantor, any other guarantor or by any other party, and no Foreign Guarantors
liability hereunder shall be affected or impaired by (a) any direction as to application of payment
by any Foreign Borrower or by any other party, (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of any Foreign Borrower, (c) any payment on or in reduction of any such other guaranty
or undertaking, (d) any dissolution, termination or increase, decrease or change in personnel by
any Foreign Borrower, or (e) any payment made to the Administrative Agent or the Lenders on the
Credit Party Obligations of any Foreign Borrower which the Administrative Agent or such Lenders
repay such Foreign Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each of the Foreign Guarantors waives any right
to the deferral or modification of its obligations hereunder by reason of any such proceeding.
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Section 11.4 Independent Obligation. |
The obligations of each Foreign Guarantor hereunder are independent of the obligations of any
other Foreign Guarantor or the Foreign Borrowers, and a separate action or actions may be brought
and prosecuted against each Foreign Guarantor whether or not action is brought against any other
Foreign Guarantor or any Foreign Borrower and whether or not any other Foreign Guarantor or Foreign
Borrower are joined in any such action or actions.
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Section 11.5 Authorization. |
Each of the Foreign Guarantors authorizes the Administrative Agent and each Lender without
notice or demand (except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to (a) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the
terms of the Credit Party Obligations or any part thereof in accordance with this Credit Agreement,
including any increase or decrease of the rate of interest thereon, (b) take and hold security from
any Foreign Guarantor or any other party for the payment of the Foreign Guaranty or the Credit
Party Obligations of the Foreign Borrowers and exchange, enforce waive and release any such
security, (c) apply such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their discretion may determine and (d) release or
substitute any one or more endorsers, Foreign Guarantors, Foreign Borrowers or other obligors.
It is not necessary for the Administrative Agent or the Lenders to inquire into the capacity
or powers of any Foreign Borrower or the officers, directors, members, partners or agents acting or
purporting to act on its behalf, and any Credit Party Obligations of any Foreign Borrower made or
created in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
(a) Each of the Foreign Guarantors waives any right (except as shall be required by
applicable statute and cannot be waived) to require the Administrative Agent or any Lender
to (i) proceed against any Foreign Borrower, any other guarantor or any other party, (ii)
proceed against or exhaust any security held from any Foreign Borrower, any other guarantor
or any other party, or (iii) pursue any other remedy in the Administrative Agents or any
Lenders power whatsoever. Each of the Foreign Guarantors waives any defense based on or
arising out of any defense of any Foreign Borrower, any other guarantor or any other party
other than payment in full of the Credit Party Obligations of the Foreign Borrowers and
termination of all Commitments with respect thereto, including, without limitation, any
defense based on or arising out of the disability of any Foreign Borrower, any other
guarantor or any other party, or the unenforceability of the Credit Party Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of any Foreign
Borrower other than payment in full of the Credit Party Obligations and termination of all
Commitments with respect thereto. The Administrative Agent may, at its election, foreclose
on any security held by the Administrative Agent by one or more judicial or nonjudicial
sales (to the extent such sale is permitted by applicable law), or exercise any other right
or remedy the Administrative Agent or any Lender may have against any Foreign Borrower or
any other party, or any security, without affecting or impairing in any way the liability of
any Foreign Guarantor hereunder except to the extent the Credit Party Obligations of the
Foreign Borrowers have been paid in full and the Commitments with respect thereto have been
terminated. Each of the Foreign Guarantors waives any defense arising out of any such
election by the Administrative Agent or any of the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of the Foreign Guarantors against the Foreign Borrowers or any other party or any
security.
(b) Each of the Foreign Guarantors waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance, notice of
protest, notices of dishonor, notices of acceptance of the Foreign Guaranty, and notices of
the existence, creation or incurring of new or additional Credit Party Obligations. Each
Foreign Guarantor assumes all responsibility for being and keeping itself informed of the
Foreign Borrowers financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Credit Party Obligations of the Foreign Borrowers and the
nature, scope and extent of the risks which such Foreign Guarantor assumes and incurs
hereunder, and agrees that neither the Administrative Agent nor any Lender shall have any
duty to advise such Foreign Guarantor of information known to it regarding such
circumstances or risks.
(c) Each of the Foreign Guarantors hereby agrees it will not exercise any rights of
subrogation which it may at any time otherwise have as a result of the Foreign Guaranty
(whether contractual, under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the
claims of the Lenders against the Foreign Borrowers or any other guarantor of the Credit
Party Obligations of the Foreign Borrowers owing to the Lenders (collectively, the
Other Parties) and all contractual, statutory or common law rights of
reimbursement, contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of the Foreign Guaranty until such time as the Loans hereunder
shall have been paid and the Commitments have been terminated. Each of the Foreign
Guarantors hereby further agrees not to exercise any right to enforce any other remedy which
the Administrative Agent or the Lenders now have or may hereafter have against any Other
Party, any endorser or any other guarantor of all or any part of the Credit Party
Obligations of any Foreign Borrower and any benefit of, and any right to participate in, any
security or collateral given to or for the benefit of the Lenders to secure payment of the
Credit Party Obligations of the Foreign Borrowers until such time as the Loans hereunder
shall have been paid and the Commitments have been terminated.
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Section 11.8 Limitation on Enforcement. |
The Lenders agree that this Foreign Guaranty may be enforced only by the action of the
Administrative Agent acting upon the instructions of the Required Lenders and that no Lender shall
have any right individually to seek to enforce or to enforce the Foreign Guaranty, it being
understood and agreed that such rights and remedies may be exercised by the Administrative Agent
for the benefit of the Lenders under the terms of this Credit Agreement. The Lenders further agree
that this Foreign Guaranty may not be enforced against any director, officer, employee or
stockholder of the Foreign Guarantors.
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Section 11.9 Confirmation of Payment. |
The Administrative Agent and the Lenders will, upon request after payment in cash in full of
the Credit Party Obligations of the Borrowers and obligations which are the subject of the Foreign
Guaranty and termination of the Commitments relating thereto (excluding any continuing obligations
under any Secured Hedging Agreements, pooling agreements or cash management agreements), confirm to
the Foreign Borrowers, the Foreign Guarantors or any other Person that such Credit Party
Obligations of the Foreign Borrowers and obligations have been paid and the Commitments relating
thereto terminated, subject to the provisions of Section 11.2, and shall release all Liens securing
the Credit Party Obligations.
Section 11.10 Concerning Joint and Several Liability of the Foreign Borrowers
(a) Each of the Foreign Borrowers is accepting joint and several liability for all of the
Credit Party Obligations of each of the Foreign Borrowers in consideration of the financial
accommodations to be provided by the Administrative Agent, the Issuing Lender and the Lenders under
this Agreement, for the mutual benefit, directly and indirectly, of each of the Foreign Borrowers
and Foreign Guarantors and in consideration of the undertakings of each other Foreign Borrower to
accept joint and several liability for the Credit Party Obligations of the Foreign Borrowers.
(b) Each of the Foreign Borrowers, jointly and severally, hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Foreign Borrowers with respect to the payment and performance of all of
the Credit Party Obligations of the Foreign Borrowers (including, without limitation, any Credit
Party Obligations arising under this Section), it being the intention of the parties hereto that
all of the Credit Party Obligations of the Foreign Borrowers shall be the joint and several
obligations of each of the Foreign Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Foreign Borrowers shall fail to make any payment with
respect to any of the Credit Party Obligations as and when due or to perform any of the Credit
Party Obligations in accordance with the terms thereof, then in each such event the other Foreign
Borrowers will make such payment with respect to, or perform, such Credit Party Obligations.
(d) The Obligations of each of the Foreign Borrowers under the provisions of this Section
11.10 constitute full recourse obligations of each such Foreign Borrower enforceable against each
such Foreign Borrower to the full extent of its properties and assets, to the fullest extent
permitted by Applicable Law, irrespective of the validity, regularity or enforceability of this
Agreement against any other Foreign Borrower or any other circumstance whatsoever.
(e) Except as otherwise expressly provided in this Agreement, each of the Foreign Borrowers,
to the fullest extent permitted by Applicable Law, hereby waives notice of acceptance of its joint
and several liability, notice of any Loans made under this Agreement, notice of any action at any
time taken or omitted by the Administrative Agent, the Issuing Lender or the Lenders under or in
respect of any of the Credit Party Obligations, and, generally, to the extent permitted by
Applicable Law and except as to notices expressly provided for in the Credit Documents, all
demands, notices and other formalities of every kind in connection with this Agreement. Each
Foreign Borrower, to the fullest extent permitted by Applicable Law, hereby waives all defenses
which may be available by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshaling of assets of the Foreign Borrowers and any
other entity or Person primarily or secondarily liable with respect to any of the Credit Party
Obligations, and all suretyship defenses generally. Each of the Foreign Borrowers, to the fullest
extent permitted by Applicable Law, hereby assents to, and waives notice of, any extension or
postponement of the time for the payment of any of the Credit Party Obligations, the acceptance of
any payment of any of the Credit Party Obligations, the acceptance of any partial payment thereon,
any waiver, consent or other action or acquiescence by the Lenders, the Administrative Agent or the
Issuing Lender at any time or times in respect of any default by any of the Foreign Borrowers in
the performance or satisfaction of any term, covenant, condition or provision of this Agreement,
any and all other indulgences whatsoever by the Lenders, the Administrative Agent or the Issuing
Lender in respect of any of the Credit Party Obligations, and the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for any of the Obligations or
the addition, substitution or release, in whole or in part, of any of the Foreign Borrowers.
Without limiting the generality of the foregoing, to the fullest extent permitted by law, each of
the Foreign Borrowers assents to any other action or delay in acting or failure to act on the part
of the Lenders, the Administrative Agent or the L/C Issuer with respect to the failure by any of
the Foreign Borrowers to comply with any of its respective Obligations including, without
limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to
comply fully with Applicable Laws or regulations thereunder, which might, but for the provisions of
this Section, afford grounds for terminating, discharging or relieving any of the Foreign
Borrowers, in whole or in part, from any of its Credit Party Obligations under this Section, it
being the intention of each of the Foreign Borrowers that, so long as any of the Credit Party
Obligations of the Foreign Borrowers hereunder remain unsatisfied, the Credit Party Obligations of
such Foreign Borrowers under this Section shall not be discharged except by performance and then
only to the extent of such performance. The obligations of each of the Foreign Borrowers under
this Section shall not be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, re-construction or similar proceeding with respect to any of the other
Foreign Borrowers other Borrowers, the Lenders, the Administrative Agent or the Issuing Lender.
The joint and several liability of the Foreign Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any other change whatsoever in the
name, membership, constitution or place of formation of any of the other Foreign Borrowers or other
Borrowers, the Lenders, the Administrative Agent or the Issuing Lender.
(f) To the extent any Foreign Borrower makes a payment hereunder in excess of the aggregate
amount of the benefit received by such Foreign Borrower in respect of the extensions of credit
under this Agreement (the Benefit Amount), then such Foreign Borrower, after the payment
in full, in cash, of all of the Credit Party Obligations, shall be entitled to recover from each
other Foreign Borrower such excess payment, pro rata, in accordance with the ratio
of the Benefit Amount received by each such other Foreign Borrower to the total Benefit Amount
received by all Foreign Borrowers, and the right to such recovery shall be deemed to be an asset
and property of such Foreign Borrower so funding; provided, that each of the Foreign
Borrowers hereby agrees that it will not enforce any of its rights of contribution or subrogation
against the other Foreign Borrowers with respect to any liability incurred by it hereunder or under
any of the other Credit Documents, any payments made by it to any of the Lenders, the Issuing
Lender or the Administrative Agent with respect to any of the Credit Party Obligations of the
Foreign Borrowers or any collateral security therefor until such time as all of the Credit Party
Obligations of the Foreign Borrowers have been irrevocably paid in full in cash.
(g) Each of the Foreign Borrowers hereby agrees that it will not enforce any of its rights of
contribution or subrogation against the other Foreign Borrowers with respect to any liability
incurred by it hereunder or under any of the other Credit Documents, any payments made by it to any
of the Lenders, the Issuing Lender or the Administrative Agent with respect to any of the Credit
Party Obligations of the Foreign Borrowers or any collateral security therefor until such time as
all of the Credit Party Obligations have been irrevocably paid in full in cash. Any claim which
any Foreign Borrower may have against any other Foreign Borrower with respect to any payments to
the Lenders, the Issuing Lender or the Administrative Agent hereunder or under any other Credit
Document are hereby expressly made subordinate and junior in right of payment, without limitation
as to any increases in the Credit Party Obligations of the Foreign Borrowers arising hereunder or
thereunder, to the prior payment in full of the Credit Party Obligations and, in the event of any
insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceeding under
the Applicable Laws of any jurisdiction relating to any Foreign Borrower, its debts or its assets,
whether voluntary or involuntary, all such Credit Party Obligations shall be paid in full before
any payment or distribution of any character, whether in cash, securities or other property, shall
be made to any other Foreign Borrower therefor.
(h) Each of the Foreign Borrowers hereby agrees that the payment of any amounts due with
respect to the Indebtedness owing by any Foreign Borrower to any other Foreign Borrower is hereby
subordinated to the prior payment in full in cash of the Credit Party Obligations of the Foreign
Borrowers. Each Foreign Borrower hereby agrees that after the occurrence and during the
continuance of any Event of Default, such Foreign Borrower will not demand, sue for or otherwise
attempt to collect any Indebtedness of any other Foreign Borrower owing to such Foreign Borrower
until the Credit Party Obligations shall have been paid in full in cash. If, notwithstanding the
foregoing sentence, such Foreign Borrower shall collect, enforce or receive any amounts in respect
of such Indebtedness before payment in full in cash of the Credit Party Obligations, such amounts
shall be collected, enforced, received by such Foreign Borrower as trustee for the Administrative
Agent and be paid over to the Administrative Agent for the pro rata accounts of the
relevant Lenders to be applied to repay (or be held as security for the repayment of) the Credit
Party Obligations of the Foreign Borrowers.
(i) The provisions of this Section 11.10 are made for the benefit of the Administrative Agent,
the Issuing Lender and the Lenders and their successors and assigns, and may be enforced in good
faith by them from time to time against any or all of the Foreign Borrowers as often as the
occasion therefor may arise and without requirement on the part of the Administrative Agent, the
Issuing Lender or the Lenders first to marshal any of their claims or to exercise any of their
rights against any other Borrower or to exhaust any remedies available to them against any other
Borrower or to resort to any other source or means of obtaining payment of any of the Credit Party
Obligations hereunder or to elect any other remedy. The provisions of this Section 11.10 shall
remain in effect until all of the Credit Party Obligations shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof, made in respect of
any of the Credit Party Obligations of the Foreign Borrowers, is rescinded or must otherwise be
restored or returned by the Administrative Agent, the Issuing or the Lenders upon the insolvency,
bankruptcy or reorganization of any of the Foreign Borrowers or is repaid in good faith settlement
of a pending or threatened avoidance claim, or otherwise, the provisions of this Section 11.10 will
forthwith be reinstated in effect, as though such payment had not been made.
(j) It is the intention and agreement of the Borrowers and the Lenders that the obligations of
the Borrowers under this Agreement shall be valid and enforceable against the Borrowers to the
maximum extent permitted by Applicable Law. Accordingly, if any provision of this Agreement
creating any obligation of the Foreign Borrowers in favor of the Lenders shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement
of the Foreign Borrowers and the Lenders that any balance of the obligation created by such
provision and all other obligations of the Foreign Borrowers to the Lenders created by other
provisions of this Agreement shall remain valid and enforceable. Likewise, if by final order a
court of competent jurisdiction shall declare any sums which the Lenders may be otherwise entitled
to collect from the Foreign Borrowers under this Agreement to be in excess of those permitted under
any Applicable Law (including any fraudulent conveyance or like statute or rule of law) applicable
to the Foreign Borrowers obligations under this Agreement, it is the stated intention and
agreement of the Foreign Borrowers and the Lenders that all sums not in excess of those permitted
under such Applicable Law shall remain fully collectible by the Lenders from the Foreign Borrowers.
(k) The foregoing notwithstanding, in no event shall any Foreign Guarantor that is not a US
Credit Party be deemed to be liable for any Credit Party Obligations of any of the US Credit
Parties, and no payments by any such Foreign Guarantor shall be applied to any amounts owed by any
of the US Credit Parties.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed
and delivered by its proper and duly authorized officers as of the day and year first above
written.
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COMPANY:
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LIONBRIDGE TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ Tina Wang |
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Name: Tina Wang
Title: Vice President and Treasurer |
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FOREIGN BORROWER:
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LIONBRIDGE INTERNATIONAL,
a company formed under the laws of Ireland
By: /s/ Marc Litz |
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Name: Marc Litz
Title: Director |
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FOREIGN BORROWER: |
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LIONBRIDGE INTERNATIONAL FINANCE LIMITED, |
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a company formed under the laws of Ireland |
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By: /s/ Tina Wang |
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Name: Tina Wang |
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Title: Director |
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US GUARANTORS:
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VERITEST, INC.,
a Delaware corporation
By: /s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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LIONBRIDGE US, INC.,
a Delaware corporation
By: /s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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LIONBRIDGE GLOBAL SOLUTIONS II, INC.,
a New York corporation
By: /s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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LIONBRIDGE GLOBAL SOLUTIONS FEDERAL, INC.,
a Delaware corporation
By: /s/ Margaret Shukur |
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Name: Margaret Shukur
Title: Secretary |
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LIONBRIDGE GLOBAL SOURCING SOLUTIONS, INC., a Delaware
corporation
By: /s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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ADMINISTRATIVE AGENT:
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ David A. Carroll |
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Name: David A. Carroll
Title: Senior Vice President |
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LENDER, SOLE LEAD ARRANGER
AND SOLE BOOK RUNNER:
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Lender, Sole Lead Arranger and Sole Book Runner
By: /s/ David A. Carroll |
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Name: David A. Carroll
Title: Senior Vice President |
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FOREIGN GUARANTOR
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LIONBRIDGE LUXEMBOURG S.a.r.l., a company formed under the
laws of Luxembourg
By: /s/ Marc Litz |
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Name: Marc Litz
Title: Type A Manager |
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LENDER:
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CITIZENS BANK, N.A.,
as Syndication Agent and as a Lender
By: /s/ Robert Anastasio |
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Name: Robert Anastasio
Title: Senior Vice President |
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LENDER:
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PEOPLES UNITED BANK,
as a Lender
By: /s/ Gregory M. Batsevitsky |
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Name: Gregory M. Batsevitsky
Title: Senior Vice President |
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LENDER:
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MUFG UNION BANK, N.A.,
as Documentation Agent and as a Lender
By: /s/ Carlos Cruz |
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Name: Carlos Cruz
Title: Vice President |
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2
OMNIBUS AMENDMENT NO. 2 TO COLLATERAL DOCUMENTS
This OMNIBUS AMENDMENT NO. 2 TO COLLATERAL DOCUMENTS (this Amendment) dated as of
January 2, 2015, by and among (i) LIONBRIDGE TECHNOLOGIES, INC., a Delaware corporation (the
Company), LIONBRIDGE INTERNATIONAL, a company formed under the laws of Ireland,
(LII, and the Foreign Borrower and, together with the Company, the
Borrowers, and each individually a Borrower), (ii) those Material Domestic
Subsidiaries of the Company identified as US Guarantors on the signature pages of the Credit
Agreement (defined below) and such other Material Domestic Subsidiaries of the Company as may from
time to time become a party to the Credit Agreement, (each, a US Guarantor and
collectively, the US Guarantors), the Foreign Guarantors from time to time parties to the
Credit Agreement (each a Foreign Guarantor and collectively, the Foreign
Guarantors, and collectively with the US Guarantors, the Guarantors and, together
with the Borrowers, each a Reaffirming Party and collectively, the Reaffirming
Parties) and (iv) HSBC BANK USA, NATIONAL ASSOCIATION, as administrative agent (the
Administrative Agent) for itself and certain other financial institutions which are or
may become parties (collectively, the Lenders) to the Second Amended and Restated Credit
Agreement dated as of the date hereof (as amended and in effect from time to time, the Credit
Agreement), among the Borrowers, the Agent and the Lenders. Capitalized terms used herein
without definition shall have the meanings set forth in the Credit Agreement.
WHEREAS, the Company, VeriTest, Inc., Lionbridge US, Inc., Lionbridge Global Solutions II,
Inc., Lionbridge Global Solutions Federal, Inc., the Lender and the Administrative Agent are
parties to that certain Credit Agreement, dated as of December 21, 2006 (the Original Closing
Date), as amended and restated by that certain Amended and Restated Credit Agreement, dated as
of October 30, 2013 (as the same may have been further amended, the Existing Agreement);
WHEREAS, the Borrowers have requested, and HSBC has agreed to, amend and restate the Existing
Agreement in connection with an increase in the Revolving Commitment and the issuance of the Term
Loans;
WHEREAS, the Company, VeriTest, Inc., Lionbridge US, Inc., Lionbridge Global Solutions II,
Inc., Lionbridge Global Solutions Federal, Inc., and the Administrative Agent are parties to that
certain Security Agreement, dated as of the Original Closing Date (as amended and in effect from
time to time, the Security Agreement);
WHEREAS, the Company, VeriTest, Inc., Lionbridge US, Inc., Lionbridge Global Solutions II,
Inc., Lionbridge Global Solutions Federal, Inc., and the Administrative Agent are parties to that
certain Pledge Agreement, dated as of the Original Closing Date (as amended and in effect from time
to time, the Pledge Agreement);
WHEREAS, the Company, Lionbridge Luxembourg S.a r.l., Rory John Cowan and the Administrative
Agent are parties to that certain Charge on Shares Agreement, dated as of January 22, 2007 (as
amended and in effect from time to time, the LI Charge on Shares);
WHEREAS, LII and the Administrative Agent are parties to that certain Deed of Charge, dated as
of January 22, 2007, (as amended and in effect from time to time, the LII Charge on
Shares and together with the Security Agreement, the Pledge Agreement, and the LI Charge on
Shares, each an Existing Security Document and collectively, the Existing Security
Documents);
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Credit Agreement References. Each reference to the Existing Agreement, however so
defined, in any of the Security Documents or other Credit Documents shall be deemed to be a
reference to the Credit Agreement or any other name which refers thereto and each capitalized term
defined by reference to the Existing Agreement shall be deemed to be a reference to such term as
defined in the Credit Agreement, including, without limitation, the definitions of the terms
Administrative Agent, Credit Documents, Lender, Lenders, Loan, Notes, and Security
Documents.
2. Amendment of Schedules. The Schedules to the Security Agreement and the Schedules
to the Pledge Agreement are hereby amended and restated in their entirety as set forth on the
Schedules attached hereto and is made a part of the Security Agreement and the Pledge Agreement,
respectively.
3. Confirmation and Ratification of Existing Security Documents. Each of the
Reaffirming Parties hereby ratifies and confirms each of the Existing Security Documents (each as
amended hereby) to which it is a party and the pledges and security interests created thereby and
the other rights granted to the Administrative Agent and the Lenders thereunder. Each of the
Reaffirming Parties hereby further ratifies and confirms that each of the Existing Security
Documents (each as amended hereby) to which it is a party and the pledges and security interests
created thereby secure such Reaffirming Partys obligations under the Credit Agreement.
4. Grant of Security Interest. Subject to the provisions of and without in any way
detracting from the effectiveness of Section 3 of this Amendment, and without limiting the
effectiveness of any of the Existing Security Documents, each Reaffirming Party hereby grants a
security interest under each Existing Security Document to which it is a party, in the same
collateral in which it originally granted a security interest under each such Existing Security
Document, in favor of the Administrative Agent, for the benefit of the Lenders, and hereby agrees,
acknowledges and confirms that its grant of a security interest hereunder and under the Existing
Security Documents to which it is a party secures all of the obligations of such Reaffirming Party,
direct or indirect, contingent or absolute, matured or unmatured, now or at any time and from time
to time hereafter due or owing by such Reaffirming Party with respect to the Credit Party
Obligations, arising under or in connection with the Credit Agreement.
5. Provisions of Credit Agreement. The provisions of this Amendment are subject, in
all respects, to all provisions of the Credit Agreement including, without limitation, Section
2.21 thereof.
6. Conditions to Effectiveness. This Amendment shall not become effective unless and
until the Administrative Agent receives counterparts of this Amendment duly executed and delivered
by each of the parties hereto and each of the conditions set forth in Section 4.1 of the Credit
Agreement have been met.
7. Ratification, Etc. Except as expressly amended by this Amendment, the Security
Documents and all documents, instruments and agreements related thereto (including the Credit
Documents to which each of the parties hereto is a party) are hereby ratified and confirmed in all
respects and shall continue in full force and effect. The Security Documents (as amended hereby)
and the perfected security interests of the Administrative Agent on behalf of the Lenders
thereunder and hereunder shall continue in full force and effect, and the collateral security and
guaranties provided for in each of the Security Documents and such other documents, instruments and
agreements shall not be impaired by this Amendment.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (EXCLUDING LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW
OTHER THAN GENERAL OBLIGATIONS LAW §§ 5-141 AND 5-1402).
9. Counterparts. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but which together shall constitute one ore more of the same
instrument.
10. Miscellaneous. Nothing contained herein shall constitute a waiver of, impair or
otherwise affect any obligations of any Borrower or any Guarantor or any rights of the
Administrative Agent or any of the Lenders consequent thereon. Section headings in this Amendment
are included herein for convenience of reference only and shall not constitute part of this
Amendment for any other purpose.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Omnibus Amendment No. 2
to Collateral Documents as a sealed instrument as of the date first above written.
LIONBRIDGE TECHNOLOGIES, INC.,
as a Borrower
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By:
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/s/ Tina Wang |
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Name: Tina Wang
Title: Vice President and Treasurer |
1
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SIGNED and DELIVERED as a DEED |
By: LIONBRIDGE INTERNATIONAL
by its duly appointed attorney
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By:
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/s/ Marc E. Litz |
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Name: Marc E. Litz |
Name: Sharon Cohen Gold
Signature: /s/ Sharon Cohen Gold
Occupation:
2
VERITEST, INC.,
as a US Guarantor
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By:
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/s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
as a US Guarantor
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By:
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/s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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LIONBRIDGE GLOBAL SOLUTIONS II, INC., |
as a US Guarantor
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By:
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/s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
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LIONBRIDGE GLOBAL SOLUTIONS FEDERAL, INC., |
as a US Guarantor
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By:
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/s/ Margaret Shukur |
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Name: Margaret Shukur
Title: Secretary |
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LIONBRIDGE GLOBAL SOURCING SOLUTIONS, INC., |
as a US Guarantor
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By:
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/s/ Tina Wang |
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Name: Tina Wang
Title: Treasurer |
3
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LIONBRIDGE LUXEMBOURG S.a.r.l., |
as a Foreign Guarantor
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By:
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/s/ Marc Litz |
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Name: Marc Litz
Title: Type A Manager |
4
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HSBC BANK USA, NATIONAL ASSOCIATION, |
as Administrative Agent
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By:
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/s/ David A. Carroll |
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Name: David A. Carroll
Title: Senior Vice President |
5
|
DATED 2 JANUARY 2015 |
LIONBRIDGE INTERNATIONAL |
(as Chargor)
and
HSBC BANK USA, NATIONAL ASSOCIATION
(as Administrative Agent) |
DEED OF CONFIRMATION
Re: Share Charge dated 22 January 2007 |
1
THIS DEED OF CONFIRMATION (this Deed of Confirmation) is made the 2 January 2015
BETWEEN:
(1) |
|
LIONBRIDGE INTERNATIONAL a company incorporated and existing under the laws of Ireland having
its address at 3 West Pier Business Campus, Dun Laoghaire, County Dublin (hereinafter called
the (the Chargor); and |
(2) |
|
HSBC BANK USA, NATIONAL ASSOCIATION a national banking association of the USA (hereinafter
called the Administrative Agent) as security agent for the Lenders. |
RECITAL
A. |
|
Pursuant to a Charge on Shares dated 22 January 2007 between the Chargor and the
Administrative Agent, the Chargor charged certain securities and related rights in favour of
the Administrative Agent as security agent for the Lenders as security for the Secured
Obligations (the Share Charge). |
B. |
|
The Borrowers have requested and the Administrative Agent has agreed to amend and restate the
Credit Agreement as amended by the Amended and Restated Agreement pursuant to a Second Amended
and Restated Credit Agreement dated on or about the date hereof (the Second Amended and
Restated Credit Agreement). |
C. |
|
The parties to this Deed of Confirmation wish to enter into this Deed of Confirmation to
confirm the terms of the Share Charge as continuing security for the Secured Obligations. |
NOW THIS DEED OF CONFIRMATION WITNESSES as follows:-
1. |
|
DEFINITIONS AND INTERPRETATION |
1.1. |
|
Unless otherwise defined herein, words and expressions used in their capitalised form in this
Deed of Confirmation are taken from and shall have the same meaning as defined in the Share
Charge (whether incorporated by reference or otherwise). |
1.2. |
|
The provisions of clause 1.3 of the Share Charge (whether incorporated by reference or
otherwise) shall, where relevant, apply to this Deed of Confirmation as if set out herein in
full mutatis mutandis except that references to this Agreement or this Deed (as
applicable) shall be construed as references to this Deed of Confirmation. |
2.1. |
|
The Chargor hereby expressly acknowledges, agrees and confirms for the benefit of the
Administrative Agent that, notwithstanding the amendments to the Credit Agreement, on and from
the date on which the Amended and Restated Credit Agreement is effective in accordance with
the terms of the Second Amended and Restated Credit Agreement, the security interests created
by it under the Share Charge will: |
|
2.1.1. |
|
remain in full force and effect; |
|
2.1.2. |
|
continue to secure all of the Secured Obligations as including, for the avoidance of
doubt, its Foreign Credit Party Obligations under the Second Amended and Restated
Credit Agreement; and |
|
2.1.3. |
|
continue to constitute its legal, valid and binding obligations. |
This Deed of Confirmation may be executed in counterparts and each such counterpart taken
together shall be deemed to constitute one and the same instrument.
This Deed of Confirmation and all relationships created by it and arising out of or in
connection with it, together with all disputes, will in all respects be governed by and
construed in accordance with the laws of Ireland.
Jurisdiction
5.1. |
|
The Chargor hereby agrees for the exclusive benefit of the Administrative Agent that any
suit, action or proceeding (Proceedings), brought against it with respect to this Deed of
Confirmation may be brought in the High Court in Ireland or such other competent court of
Ireland as the Administrative Agent may elect, and the Chargor waives any objection to
Proceedings in such courts whether on grounds of venue or on the grounds that Proceedings have
been brought in any inconvenient forum. |
5.2. |
|
Nothing contained in this Deed of Confirmation will limit the right of the Administrative
Agent to take Proceedings against the Chargor in any other court of competent jurisdiction,
nor will the taking of any Proceedings in any one or more jurisdictions preclude the taking by
the Administrative Agent of Proceedings in any other jurisdiction whether concurrently or not. |
IN WITNESS whereof the parties hereto have caused this Deed of Confirmation to be executed
with the intention that it take effect as a deed (notwithstanding execution by the
Administrative Agent under hand) and it is intended to be and it is hereby delivered on the
date shown at the beginning of this Deed of Confirmation.
2
Execution Page
SIGNED and DELIVERED as a DEED
by LIONBRIDGE INTERNATIONAL
by its duly appointed attorney /s/ Tina Wang
in the presence of:
Witnesss signature: /s/ Margaret Shukur
Name: Margaret Shukur
Address:
Occupation:
SIGNED for and on behalf of
HSBC BANK USA, NATIONAL ASSOCIATION /s/ Manuel Burgueno
in the presence of:
Witnesss signature: /s/ Mary C. Neville
Name: Mary C. Neville
Address:
Occupation:
3
|
DATED 2 January 2015 |
LIONBRIDGE LUXEMBOURG S.à.r.l. |
LIONBRIDGE TECHNOLOGIES, INC.
RORY JOHN COWAN
(as Chargors)
and
HSBC BANK USA, NATIONAL ASSOCIATION
(as Administrative Agent) |
DEED OF CONFIRMATION
Re: Share Charge dated 22 January 2007 |
1
THIS DEED OF CONFIRMATION (this Deed of Confirmation) is made the 2 January 2015
BETWEEN:
(1) |
|
LIONBRIDGE LUXEMBOURG S.à.r.l. a company incorporated and existing under the laws of
Luxembourg having its address at c/o MAS 1 Rue de Glacis, L-1628 Luxembourg, Grand Duchy of
Luxembourg (hereinafter called the (the First Chargor); LIONBRIDGE TECHNOLOGIES, INC. a
company incorporated under the laws of the State of Delaware United States of America with
registered address at 1050 Winter Street, Suit 2300, Waltham, Massachusetts, United States of
America (hereinafter called the Second Chargor); and RORY JOHN COWAN of 2381 Fairhaven Hill
Road, Concord, Massachusetts 01742 United States of America (hereinafter called the Third
Chargor) (together called the Chargors); and |
(2) |
|
HSBC BANK USA, NATIONAL ASSOCIATION a national banking association of the USA (hereinafter
called the Administrative Agent) as security agent for the Lenders. |
RECITAL
A. |
|
Pursuant to a Charge on Shares dated 22 January 2007 between the Chargors and the
Administrative Agent, the Chargors charged certain securities and related rights in favour of
the Administrative Agent as security agent for the Lenders as security for the Secured
Obligations (the Share Charge). |
B. |
|
The Borrowers have requested and the Administrative Agent has agreed to amend and restate the
Credit Agreement as amended by an Amended and Restated Credit Agreement pursuant to a Second
Amended and Restated Credit Agreement dated on or about the date hereof (the Second Amended
and Restated Credit Agreement) |
C. |
|
The parties to this Deed of Confirmation wish to enter into this Deed of Confirmation to
confirm the terms of the Share Charge as continuing security for the Secured Obligations. |
NOW THIS DEED OF CONFIRMATION WITNESSES as follows:-
1. |
|
DEFINITIONS AND INTERPRETATION |
1.1. |
|
Unless otherwise defined herein, words and expressions used in their capitalised form in this
Deed of Confirmation are taken from and shall have the same meaning as defined in the Share
Charge (whether incorporated by reference or otherwise). |
1.2. |
|
The provisions of clause 1.3 of the Share Charge (whether incorporated by reference or
otherwise) shall, where relevant, apply to this Deed of Confirmation as if set out herein in
full mutatis mutandis except that references to this Agreement or this Deed (as
applicable) shall be construed as references to this Deed of Confirmation. |
2.1. |
|
Each Chargor hereby expressly acknowledges, agrees and confirms for the benefit of the
Administrative Agent that, notwithstanding the amendments to the Credit Agreement, on and from
the date on which the Second Amended and Restated Credit Agreement is effective in accordance
with the terms of the Second Amended and Restated Credit Agreement, the security interests
created by it under the Share Charge will: |
|
2.1.1. |
|
remain in full force and effect; |
|
2.1.2. |
|
continue to secure all of the Secured Obligations as including, for the avoidance of
doubt, its Foreign Credit Party Obligations under the Second Amended and Restated
Credit Agreement; and |
|
2.1.3. |
|
continue to constitute its legal, valid and binding obligations. |
This Deed of Confirmation may be executed in counterparts and each such counterpart taken
together shall be deemed to constitute one and the same instrument.
This Deed of Confirmation and all relationships created by it and arising out of or in
connection with it, together with all disputes, will in all respects be governed by and
construed in accordance with the laws of Ireland.
Jurisdiction
5.1. |
|
Each Chargor hereby agrees for the exclusive benefit of the Administrative Agent that any
suit, action or proceeding (Proceedings), brought against that Chargor with respect to this
Deed of Confirmation may be brought in the High Court in Ireland or such other competent court
of Ireland as the Administrative Agent may elect, and each Chargor waives any objection to
Proceedings in such courts whether on grounds of venue or on the grounds that Proceedings have
been brought in any inconvenient forum. |
5.2. |
|
Nothing contained in this Deed of Confirmation will limit the right of the Administrative
Agent to take Proceedings against a Chargor in any other court of competent jurisdiction, nor
will the taking of any Proceedings in any one or more jurisdictions preclude the taking by the
Administrative Agent of Proceedings in any other jurisdiction whether concurrently or not. |
IN WITNESS whereof the parties hereto have caused this Deed of Confirmation to be executed
with the intention that it take effect as a deed (notwithstanding execution by the
Administrative Agent under hand) and it is intended to be and it is hereby delivered on the
date shown at the beginning of this Deed of Confirmation.
2
Execution Page
EXECUTED AS A DEED
By LIONBRIDGE LUXEMBOURG S.à.r.l.
acting by: /s/ Paul Kohout
in the presence of:
Witnesss signature: /s/ Margaret Shukur
Name: Margaret Shukur
Address:
EXECUTED AS A DEED
By LIONBRIDGE TECHNOLOGIES, INC.
acting by: /s/ Tina Wang
in the presence of:
Witnesss signature: /s/ Margaret Shukur
Name: Margaret Shukur
Address:
SIGNED and DELIVERED as a DEED
By RORY JOHN COWAN /s/ Rory John Cowan
in the presence of:
Witnesss signature: /s/ Margaret Shukur
Name: Margaret Shukur
Address:
SIGNED for and on behalf of
HSBC BANK USA, NATIONAL ASSOCIATION /s/ Manuel Burgueno
in the presence of:
Witnesss signature: /s/ Mary C. Neville
Name: Mary C. Neville
Address:
3
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