CREDIT AGREEMENT dated as of November 9, 2012 among
CUMMINS INC., CUMMINS LTD., CUMMINS POWER GENERATION LTD., CUMMINS GENERATOR
TECHNOLOGIES LIMITED, the ELIGIBLE SUBSIDIARIES referred to herein, the LENDERS
party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Issuing Bank
and Swingline Lender, BANK OF AMERICA, N.A., as Syndication Agent and Swingline
Lender, ING BANK N.V., DUBLIN BRANCH, as Co-Documentation Agent and Swingline
Lender, and Export Development Canada, HSBC Bank USA, N.A., The Royal Bank of
Scotland plc and U.S. Bank N.A., as Co-Documentation Agents.
The parties hereto agree as follows:
“ABR”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Alternate Base
Rate.
“ABR Margin” has the meaning assigned to such term
in Section 2.21.
“Additional Letter of Credit” means a letter of
credit issued hereunder by an Issuing Bank on or after the Effective Date.
“Adjusted LIBO Rate” means (a) with respect to any
Euro-Currency Borrowing denominated in Dollars for any Interest Period, an
interest rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to (i) the LIBO Rate for such Interest Period multiplied by
(ii) the Statutory Reserve Rate and (b) with respect to any Euro-Currency
Borrowing denominated in an Alternative Currency for any Interest Period, an
interest rate per annum equal to (i) the LIBO Rate for such Interest Period plus
(ii) in the case of a Euro-Currency Loan of a Lender which is lent from a
branch or office in England or a Participating Member State, the Mandatory
Costs.
“Administrative Agent” means JPMCB and its
Affiliates, as applicable, in each case in its capacity as administrative agent
for the Lenders hereunder, provided that the rights of the
Administrative Agent under Article 8, Section 12.02 and Section 12.04 shall be exercised solely by JPMCB (or its successors) in its capacity as Administrative
Agent.
“Administrative Questionnaire” means an
Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the Person specified.
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“Agents” means the Administrative Agent, the
Syndication Agent and each Co-Documentation Agent.
“Alternate Base Rate” means, for any day, a rate
per annum equal to the highest of (a) the Prime Rate in effect on such
day, (b) the Federal Funds Effective Rate in effect on such day
plus ½ of 1% and (c) the sum of 1% plus the rate for deposits in Dollars
with a one-month maturity appearing on the Screen at approximately 11:00 a.m.,
London time, on such day (or if such day is not a Euro-Dollar Business Day, on
the immediately preceding Euro-Dollar Business Day). Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Alternative Currency” means Euro or Pound
Sterling.
“Alternative Currency Loan” means a Loan that is
made in an Alternative Currency pursuant to the applicable Borrowing Request
(or request pursuant to Section 2.04). Any Loan made in the currency of a
Participating Member State before the date on which such Participating Member
State adopts the Euro as its currency (the “Entry Date”) and still
outstanding on the Entry Date shall be prepaid on the last day of the Interest
Period applicable thereto on the Entry Date.
“Alternative Currency Exposure” means the sum of
(a) the aggregate Dollar Amount of outstanding Alternative Currency Loans plus
(b) the aggregate Dollar Amount of LC Exposure with respect to Letters of
Credit which are denominated in an Alternative Currency.
“Alternative Currency Sublimit” means $200,000,000.
“Applicable Lending Office” means, with respect to
any Lender, (a) in the case of its ABR Loans, its Domestic Lending Office, (b)
in the case of its Euro-Currency Loans, its Euro-Currency Lending Office and
(c) in the case of its Swingline Loans, its Swingline Lending Office.
“Applicable Percentage” means, with respect to any
Lender, the percentage of the total Commitments represented by such Lender’s
Commitment; provided that in the case of Section 2.23 when a Defaulting
Lender shall exist, “Applicable Percentage” shall mean the percentage of the
total Commitments (disregarding any Defaulting Lender’s Commitment) represented
by such Lender’s Commitment. If the Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments and to any Lender’s status
as a Defaulting Lender at the time of determination.
“Applicable Rate” means, for any day, with respect
to any ABR Loan or Euro-Currency Loan, or with respect to the commitment fees
payable hereunder, as the case may be, the applicable ABR Margin or
Euro-Currency Margin or the Commitment Fee Rate, respectively, in each case as
determined for such day in accordance with Section 2.21.
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“Approved Fund” has the meaning assigned to such
term in Section 12.04.
“Approved Jurisdiction” means (i) the United
States, (ii) England and Wales in the United Kingdom and (iii) any other
jurisdiction approved for this purpose by each of the Lenders.
“Assignment and Assumption” means an assignment and
assumption entered into by a Lender and an assignee (with the consent of each
party whose consent is required by Section 12.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent and the Company.
“Availability Period” means the period from and
including the Effective Date to but excluding the earlier of the Maturity Date
and the date of termination of the Commitments in whole.
“Bankruptcy Event” means, with respect to any
Person, such Person becomes the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with
the reorganization or liquidation of its business appointed for it, or, in the
good faith determination of the Administrative Agent, has taken any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any such proceeding or appointment, provided that, for avoidance of
doubt, a Bankruptcy Event shall not result solely by virtue of (i) any
ownership interest, or the acquisition of any ownership interest, in such
Person by a Governmental Authority or instrumentality thereof or (ii) in
the case of a solvent person, the precautionary appointment of an
administrator, guardian, custodian or other similar official by a Governmental
Authority under or based on the law of the country where such Person is subject
to home jurisdiction supervision if applicable law requires that such
appointment not be publicly disclosed, in any such case, where such action does
not result in or provide such Person 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 Person (or such Governmental
Authority or instrumentality) to reject, repudiate, disavow or disaffirm any obligations
of such Person hereunder.
“Board” means the Board of Governors of the Federal
Reserve System of the United States of America.
“BofA” means Bank of America, N.A., a national
banking association.
“Borrower” means the Company, any Original
Subsidiary Borrower or any Eligible Subsidiary, as the context may require, and
their respective successors, and “Borrowers” means all of the
foregoing. When used in relation to any Loan or Letter of Credit, references
to “the Borrower” are to the particular Borrower to which such Loan is or is to
be made or at whose request such Letter of Credit is or is to be issued.
“Borrowing” means (a) Revolving Loans of the same
Type, made, converted or continued on the same date and, in the case of
Euro-Currency Loans, denominated in the same currency and as to which a single
Interest Period is in effect or (b) a Swingline Loan.
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“Borrowing Request” means a request by the Borrower
for a Revolving Borrowing in accordance with Section 2.03.
“Calendar Quarter” means a three-month period
consisting of (i) each January, February and March, (ii) each April, May and
June, (iii) each July, August and September or (iv) each October, November and
December.
“Capital Lease Obligations” of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP as
in effect on the date of this Agreement, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with GAAP as
in effect on the date of this Agreement.
“Change in Control” means that (a) any Person or
group of persons within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934 becomes the beneficial owner, directly or indirectly, of
30% or more of the outstanding common stock of the Company or (b) individuals
who constitute the Continuing Directors cease for any reason to constitute at
least a majority of the board of directors of the Company (which, for the
purpose of this definition, shall be deemed not to mean any committee of the
board of directors of the Company).
“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 or application
thereof by any Governmental Authority, or (c) the making or issuance of any
request, rules, guideline, requirement or directive (whether or not having the
force of law) by any Governmental Authority; provided, however, that
notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines,
requirements and directives thereunder, issued in connection therewith or in
implementation thereof, and (ii) all requests, rules, guidelines, requirements
and 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, issued or implemented.
“Class”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are Revolving Loans or Swingline Loans.
“CLO” has the meaning assigned to such term in Section
12.04.
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“Co-Documentation Agents” means ING Bank N.V.,
Dublin Branch, Export Development Canada, HSBC Bank USA, N.A., The Royal Bank
of Scotland plc and U.S. Bank N.A, in their capacity as co-documentation agents
in respect of this Agreement.
“Code” means the Internal Revenue Code of 1986, as
amended from time to time.
“Commitment” means, with respect to each Lender,
the commitment of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate Dollar Amount of such Lender’s
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08, (b) increased from time to time pursuant
to Section 2.24 and (c) reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 12.04. The initial amount of each
Lender’s Commitment is set forth on Schedule 2.01, or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders’ Commitments is $1,750,000,000.
“Commitment Fee Rate” has the meaning assigned to
such term in Section 2.21.
“Company” means Cummins Inc., an Indiana
corporation.
“Consolidated” means, as applied to any financial
or accounting term with respect to any Person, such term determined on a
consolidated basis in accordance with GAAP for such Person and all consolidated
subsidiaries thereof.
“Consolidated EBITDA” means, for any period,
Consolidated Net Income for such period plus (a) without duplication and to the
extent deducted in determining such Consolidated Net Income, the sum of (i)
consolidated interest expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period, (iv) any extraordinary or other non-cash losses,
costs, expenses or charges for such period, (v) any
loss for such period of any joint venture accounted for on the equity method
(except to the extent the Company or a Subsidiary actually made an investment
in such joint venture during such period to offset such loss) and (vi)
Consolidated EBITDA Addbacks in an aggregate amount not to exceed $200,000,000
during any period of four consecutive fiscal quarters, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, (i) any extraordinary gains for such period and (ii) any income of any
such joint venture for such period, except to the extent that dividends or
other distributions were actually paid by such joint venture to the Company or
a Subsidiary during such period, all determined on a Consolidated basis in
accordance with GAAP. For the purposes of calculating Consolidated EBITDA for
any period, if during such period the applicable Person or any of its Subsidiaries
shall have consummated a Specified Transaction (as defined below), Consolidated
EBITDA for such period shall be calculated after giving pro forma effect
thereto as if such Specified Transaction occurred on the first day of such
period. For purposes hereof, “Specified Transaction” means any
transaction or series of related transactions resulting in (a) the acquisition or
disposition of all or substantially all of the assets of a Person, or of any
business or division of a Person, (b) the acquisition or disposition of in
excess of 50% of the Equity Interests of any Person or (c) a merger or
consolidation or any other combination with another Person (other than the Company
or any of its Subsidiaries).
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“Consolidated EBITDA Addbacks” means (a) fees,
costs, expenses, reserves and charges relating to restructurings, including
business organization expenses, costs related to the closure and/or
consolidation of facilities, retention charges and recruiting, relocation,
severance and signing bonuses and expenses, (b) fees, costs, expenses and
charges for such period in connection with (i) any issuance or incurrence of
indebtedness or equity, (ii) any acquisition or investment and (iii) any
divestiture and (c) losses, costs and expenses arising from or in connection
with discontinued operations or casualty events.
“Consolidated Net Income” means, for any period,
the net earnings (loss) of the Company and its Subsidiaries for such period,
computed and Consolidated in accordance with GAAP.
“Consolidated Subsidiary” means, at any date, any
Subsidiary or other entity the accounts of which would be Consolidated with
those of the Company in its Consolidated financial statements if such
statements were prepared as of such date.
“Continuing Director” means any member of the board
of directors of the Company who is (i) a director of the Company on the date of
this Agreement, (ii) nominated by the board of directors of the Company or
(iii) appointed by directors referred to in clauses (i) and (ii).
“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise. “Controlling” and “Controlled” have
meanings correlative thereto.
“Credit Party” means the Company and each other
Borrower.
“Default” means any event or condition which
constitutes an Event of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender that
(a) has failed, within two Domestic Business Days of the date required to
be funded or paid, to (i) fund all or any portion of its Loans, (ii) fund all
or any portion of its participations in Letters of Credit or Swingline Loans or
(iii) pay over to any Lender Party any other amount required to be paid by it
hereunder, unless, in the case of clause (i) above, such Lender notifies the
Administrative Agent and the Company in writing that such failure is the result
of such Lender’s reasonable determination that a condition precedent to funding
(specifically identified and including the particular default, if any) has not
been satisfied, (b) has notified the Company or the Administrative Agent and
the Company in writing, or has made a public statement to the effect, that it
does not intend or expect to comply with all or any portion of its funding
obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender’s reasonable determination
that a condition precedent (specifically identified and including the particular
default, if any) to funding under this Agreement cannot be satisfied) or
generally under other agreements in which it commits to extend credit, (c) has
failed, within three Domestic Business Days after request by the Administrative
Agent or the Company, acting in good faith, to provide a certification in
writing from an authorized officer of such Lender that it will comply with its
obligations to fund prospective Loans and participations in then outstanding
Letters of Credit and Swingline Loans under this Agreement, provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon the Administrative Agent’s or the Company’s receipt of such
certification in form and substance satisfactory to it, or (d) has become the subject of a Bankruptcy Event or has a
Parent that has become the subject of a Bankruptcy Event.
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“Dollars” or “$” refers to lawful money of
the United States of America.
“Dollar Amount” means, at any time:
(a) with respect to any Dollar-Denominated Loan, the principal amount
thereof then outstanding;
(b) with respect to any Alternative Currency Loan, the principal
amount thereof then outstanding in the relevant Alternative Currency, converted
to Dollars in accordance with Section 2.20(a); and
(c) with respect to any Letter of Credit or LC Disbursement, (A) if denominated in Dollars, the amount thereof and (B) if denominated in an Alternative Currency, the amount
thereof converted to Dollars in accordance with Section 2.20(b).
“Dollar-Denominated Loan” means a Loan that is
made in Dollars.
“Dollar-Denominated Revolving Borrowing” means a
Revolving Borrowing denominated in Dollars.
“Domestic Business Day” means any day except a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized by law to close.
“Domestic Lending Office” means, as to each Lender,
its office located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Lender may hereafter designate as its
Domestic Lending Office by notice to the Company and the Administrative Agent.
“Effective Date” means the date on which the
conditions specified in Section 4.01 are satisfied (or waived in accordance
with Section 12.02).
“Election to Participate” means an Election to
Participate substantially in the form of Exhibit D.
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“Election to Terminate” means an Election to
Terminate substantially in the form of Exhibit E.
“Eligible Subsidiary” means any Wholly-Owned
Consolidated Subsidiary organized under the laws of an Approved Jurisdiction
(i) as to which an Election to Participate shall have been delivered to the
Administrative Agent and (ii) as to which an Election to Terminate with respect
to such Election to Participate shall not have been delivered to the
Administrative Agent. Each such Election to Participate and Election to
Terminate shall be duly executed on behalf of such Wholly-Owned Consolidated
Subsidiary and the Company in such number of copies as the Administrative Agent
may request. If at any time a Subsidiary theretofore designated as an Eligible
Subsidiary no longer qualifies as a Wholly-Owned Consolidated Subsidiary, the
Company shall cause to be delivered to the Administrative Agent an Election to
Terminate terminating the status of such Subsidiary as an Eligible Subsidiary.
The delivery of an Election to Terminate shall not affect any obligation of an
Eligible Subsidiary theretofore incurred or the Company’s guarantee thereof.
The Administrative Agent shall promptly give notice to the Lenders of the
receipt of any Election to Participate or Election to Terminate.
“Environmental Laws” means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, or the management, release or threatened
release of any Hazardous Material.
“Environmental Liability” means any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the Company or
any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“Equity Interests” means shares of capital stock,
partnership interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests in a
Person, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business
(whether or not incorporated) that, together with the Company, is treated as a single
employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
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“ERISA Event” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan, (c) the incurrence by the Company or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan, (d) the receipt by
the Company or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan, (e) the incurrence by
the Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan, (f) the receipt by the Company or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Company or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, “insolvent”, or in “reorganization” within the meaning of
Title IV of ERISA or in “endangered” or in “critical” status within the meaning
of Section 432 of the Code or Section 304 of ERISA; (g) a
determination that any Plan is or is reasonably expected to be in “at risk”
status (within the meaning of Section 430 of the Code or Section 303 of ERISA);
(h) the conditions contained in Section 303(k)(1)(A) of ERISA for imposition of
a lien shall have been met with respect to any Plan; (i) the cessation of
operations at a facility of the Company or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; or (j) a Foreign Plan Event.
“Euro” means the single currency of the
Participating Member States.
“Euro-Currency Business Day” means a Euro-Dollar
Business Day; provided that (a) when used in connection with an
Alternative Currency Loan or LC Exposure denominated in an Alternative
Currency, the term “Euro-Currency Business Day” shall exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market and (b) when used in connection with any Loan or LC
Exposure denominated in Euro, the term “Euro-Currency Business Day” shall
exclude any day on which the TARGET2 payment system is not open for the
settlement of payment in Euro.
“Euro-Currency Lending Office” means, as to each
Lender, its office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Currency Lending Office) or such other office, branch or affiliate
of such Lender as it may hereafter designate as its Euro-Currency Lending
Office by notice to the Company and the Administrative Agent; provided
that any Lender may from time to time by notice to the Borrower and the
Administrative Agent designate separate Euro-Currency Lending Offices for its
Loans in different currencies and/or to different Borrowers, in which case all
references herein to the Euro-Currency Lending Office of such Lender shall be
deemed to refer to any or all of such offices, as the context may require.
“Euro-Currency Loan” means a Euro-Dollar Loan or an
Alternative Currency Loan.
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“Euro-Currency Margin” means the applicable rate
determined in accordance with Section 2.21.
“Euro-Dollar”, when used in reference to any Loan
or Borrowing made in Dollars, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
“Euro-Dollar Business Day” means any Domestic
Business Day on which commercial banks are open for international business
(including dealings in Dollar deposits) in London.
“Event of Default” has the meaning assigned to such
term in Article 8.
“Evergreen Letter of Credit” means a Letter of
Credit that is automatically extended unless the applicable Issuing Bank gives
notice to the beneficiary thereof stating that such Letter of Credit will not
be extended.
“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, any Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of any Borrower under
any Loan Document, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its Applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States of America,
or any similar tax imposed by any other jurisdiction described in clause (a)
above, (c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Company under Section 2.19(b)), any withholding tax that (i)
is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new Applicable
Lending Office), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new Applicable Lending
Office (or assignment), to receive additional amounts from any Borrower with
respect to such withholding tax pursuant to Section 2.16(a) or (ii) is
attributable to such Foreign Lender’s failure to comply with Section 2.16(e), (f) and (g), and (d) Taxes resulting from FATCA.
“Existing Credit Agreement” means the Credit
Agreement dated as of July 16, 2010, as amended, among the Company, and the
Subsidiaries, lenders and agents party thereto.
“Existing Letters of Credit” means the letters of
credit issued by an Issuing Bank before the Effective Date and listed in Schedule 2.05.
“Extension Agreement” has the meaning assigned to
such term in Section 2.24(a).
“Extension Date” has the meaning assigned to such
term in Section 2.24(a).
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“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.
“Federal Funds Effective Rate” means, for any day,
the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%)
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Domestic Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Domestic
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
“Financial Officer” means the chief financial
officer, principal accounting officer, treasurer or assistant treasurer.
“Fitch” means Fitch Ratings, Ltd.
“Foreign Lender” means any Lender that is organized
under the laws of a jurisdiction outside the United States.
“Foreign Plan” shall mean any benefit plan
maintained or contributed to by the Company or any Subsidiary that, under
applicable law other than the laws of the United States or any political
subdivision thereof, is required to be funded through a trust or other funding
vehicle other than a trust or funding vehicle maintained exclusively by a
Governmental Authority.
“Foreign Plan Event” shall mean, with respect to
any Foreign Plan, (a) the existence of unfunded liabilities in excess of the
amount permitted under any applicable law, or in excess of the amount that
would be permitted absent a waiver from a Governmental Authority; (b) the
failure to make the required contributions or payments, under any applicable
law, on or before the due date for such contributions or payments; (c) the
receipt of a notice by a Governmental Authority relating to the intention to
terminate any such Foreign Plan or to appoint a trustee or similar official to
administer any such Foreign Plan, or alleging the insolvency of any such
Foreign Plan; (d) the incurrence of any liability by the Company or any
Subsidiary under applicable law on account of the complete or partial
termination of such Foreign Plan or the complete or partial withdrawal of any
participating employer therein; or (e) the occurrence of any transaction that
is prohibited under any applicable law and that could reasonably be expected to
result in the incurrence of any liability by the Company or any Subsidiary, or
the imposition on the Company or any Subsidiary of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law.
15
“GAAP” means generally accepted accounting
principles in the United States as described in Section 1.04.
“Governmental Authority” means the government of
the United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
“Guarantee” of or by any Person means, without
duplication, any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness of
any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (b) to purchase
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that, the term “Guarantee” shall not
include endorsements for collection or deposit in the ordinary course of
business. It is understood and agreed that the amount of any Guarantee of or
by any Person shall be deemed to be the lower of (a) the amount of Indebtedness
in respect of which such Guarantee exists and (b) the maximum amount for which
such Person may be liable pursuant to the terms of the instrument embodying
such Guarantee.
“Hazardous Materials” means all explosive or
radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
“Indebtedness” of any Person means, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by such
Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such Person of Indebtedness of
others, (h) all Capital Lease Obligations of such
Person, (i) all obligations of such Person as an account party in respect of
letters of credit and bankers’ acceptances and (j)
net obligations under Swap Agreements. The Indebtedness of any Person shall
also include the Indebtedness of any partnership in which such Person is a
general partner, except to the extent that recourse against such general
partner (as a general partner) has been contractually waived or limited.
Notwithstanding the foregoing, the term “Indebtedness”, in respect of the
Company and its Subsidiaries, shall not include (i) deferred compensation and
employee benefit obligations for officers and employees of the Company or any
of its Subsidiaries, (ii) trade and similar payables and accrued expenses or
liabilities incurred in the ordinary course of business, (iii) any customary
earnout or holdback in connection with an acquisition not prohibited by this
Agreement, (iv) any obligations in respect of customer advances held in the
ordinary course of business, (v) performance bonds,
performance guarantees or similar obligations (or contingent reimbursement
obligations in respect of bank guarantees or letters of credit in lieu thereof)
entered into in the ordinary course of business or (vi) any Indebtedness that
has been defeased, provided that funds in an amount equal to all such
Indebtedness (including interest and any other amounts required to be paid to
the holders thereof in order to give effect to such defeasance) have been
irrevocably deposited with a trustee for the benefit of the relevant holders of
such Indebtedness. If any Indebtedness is limited to recourse against a
particular asset or assets of a Person, the amount of the corresponding
Indebtedness shall be equal to the lesser of the amount of such Indebtedness
and the fair market value of such asset or assets, as determined by the Company
in good faith, at the date for determination of the amount of such
Indebtedness. For all purposes of this Agreement, the amount of Indebtedness
of the Company and its Subsidiaries shall be calculated without duplication of
guaranty obligations of the Company or any Subsidiary in respect thereof.
16
“Indemnified Taxes” means Taxes, other than
Excluded Taxes, imposed on or with respect to any payment made by or on account
of any obligation of any Borrower under this Agreement.
“Information Memorandum” means the Confidential
Information Memorandum dated October 16, 2012 relating to the Company and the
Transactions.
“Interest Election Request” means a request by the
Borrower to convert or continue a Revolving Borrowing in accordance with Section
2.07.
“Interest Payment Date” means (a) with respect
to any ABR Loan (other than a Swingline Loan), the last day of each March, June,
September and December, (b) with respect to any Euro-Currency Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Euro-Currency Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.
“Interest Period” means, with respect to any
Euro-Currency Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that is
one, two, three, or six months, or (subject to the availability to each Lender
of matching deposits for such periods in the London interbank market) nine or
twelve months thereafter, as the Borrower may elect; provided that:
(a) if any Interest Period would end on a day other than a Euro-Currency
Business Day, such Interest Period shall be extended to the next succeeding
Euro-Currency Business Day unless such next succeeding Euro-Currency Business
Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Euro-Currency Business Day; and (b) any
Interest Period pertaining to a Euro-Currency Borrowing that commences on the
last Euro-Currency Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Euro-Currency Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and
thereafter, other than for purposes of Section 4.02, shall be the effective
date of the most recent conversion or continuation of such Borrowing.
17
“Issuing Bank” means JPMCB or one or more other
Lenders designated by the Company who agree to become Issuing Banks, in each
case in its capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.05(j). Each Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate (excluding Sections 2.05(k) and 12.04(b)(i)(B)).
“JPMCB” means JPMorgan Chase Bank, N.A., a national
banking association.
“LC Disbursement” means a payment made by an
Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a)
the aggregate Dollar Amount of the undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate Dollar Amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such
time. The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
“LC Termination Date” means, at any time, the date
that is the fifth Euro-Currency Business Day prior to the latest Maturity Date
then in effect as to any Lender.
“Lender Party” means the Administrative Agent, any
Issuing Bank, any Swingline Lender or any other Lender.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have
become a party hereto pursuant to an Assignment and Assumption, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term “Lenders”
includes the Swingline Lenders.
“Letter of Credit” means any Existing Letter of
Credit or Additional Letter of Credit.
“LIBO Rate” means, with respect to any
Euro-Currency Borrowing for any Interest Period, the rate appearing on the
Screen at approximately 11:00 a.m., London time, two Euro-Currency Business
Days prior to the commencement of such Interest Period (or, in the case of a
Swingline Borrowing, on the date of commencement of such Interest Period), as
the rate for deposits in Dollars or the relevant Alternative Currency with a
maturity comparable to such Interest Period. In the event that such rate is
not available for such currency at such time for any reason, then the “LIBO
Rate” with respect to such Euro-Currency Borrowing for such Interest Period
shall be the average (rounded upwards, if necessary, to the next 1/100 of 1%)
of the respective rates at which deposits of the relevant currency with a
maturity comparable to such Interest Period are offered by the Reference Banks
in immediately available funds in the London interbank market at the applicable
time specified above.
18
“Lien” means, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in or on such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset, but excluding, for the
avoidance of doubt, any operating lease.
“Loan Documents” means this Agreement, each
Election to Participate and any promissory notes issued to any Lender
hereunder.
“Loans” means the loans made by the Lenders to the
Borrowers pursuant to this Agreement.
“Mandatory Cost” means an amount determined in
accordance with Schedule 1.01 hereto.
“Material Adverse Effect” means a material adverse
effect on (a) the business, assets, operations or financial condition of
the Company and the Subsidiaries taken as a whole, (b) the ability of the
Company to perform any of its material obligations under the Loan Documents or
(c) the validity or enforceability of, or the rights of or remedies
available to the Lenders under, the Loan Documents; provided, however,
that events, circumstances, changes, effects or conditions with respect to the
Company and its Subsidiaries disclosed in any Form 10-K, Form 10-Q or Form 8-K
filed by the Company with the Securities and Exchange Commission prior to
November 6, 2012 shall not constitute a “Material Adverse Effect” to the extent
so disclosed.
“Maturity Date” means November 9, 2017 or, as to
any Lender for which the Maturity Date is extended pursuant to Section 2.24,
the date to which the Maturity Date is so extended or, if such day is not a
Euro-Currency Business Day, the next preceding Euro-Currency Business Day.
“Moody’s” means Moody’s Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
“Original Subsidiary Borrower” means each of
Cummins Ltd., a company incorporated under the laws of England and Wales in the
United Kingdom, Cummins Power Generation Ltd., a company incorporated under the
laws of England and Wales in the United Kingdom, and Cummins Generator
Technologies Limited, a company incorporated under the laws of England and
Wales in the United Kingdom. The Company may, by delivery to the
Administrative Agent of an Election to Terminate, terminate the status of any
of the above-listed Subsidiaries as an Original Subsidiary Borrower. The
delivery of an Election to Terminate shall not affect any obligation of an
Original Subsidiary Borrower theretofore incurred or the Company’s guarantee
thereof. The Administrative Agent shall promptly give notice to the Lenders of
the receipt of any such Election to Terminate.
19
“Other Taxes” means any and all present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made under any Loan Document or from
the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.
“Parent” means, with respect to any Lender, any
Person as to which such Lender is, directly or indirectly, a subsidiary.
“Participant” has the meaning set forth in Section
12.04.
“Participant Register” has the meaning assigned to
such term in Section 12.04(e).
“Participating Member States” means those members
of the European Union from time to time which adopt a single, shared currency.
“PBGC” means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA and any successor entity
performing similar functions.
“Person” means any natural person, corporation,
limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.
“Pound Sterling” means the lawful currency of the
United Kingdom.
“Prime Rate” means the rate of interest per annum
publicly announced from time to time by JPMCB as its prime rate in effect at
its principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
“Priority Indebtedness” shall mean, at any time,
without duplication, (i) the aggregate principal amount of all Indebtedness of
the Company then outstanding which Indebtedness is secured by Liens on property
and assets of the Company or any Subsidiary (other than Indebtedness secured by
Liens described in (a) through (l) of Section 6.01), and (ii) the aggregate
principal amount of all outstanding Indebtedness of all Subsidiaries (other
than (x) Indebtedness hereunder, (y) Indebtedness of Subsidiaries payable to the Company
or any Wholly-Owned Consolidated Subsidiary and (z)
any unsecured Guarantee of Indebtedness issued by the Company; provided
that such Subsidiary shall also have guaranteed the obligations hereunder on or
prior to the date on which such Guarantee is given).
20
“Reference Banks” means the principal London
offices of JPMCB, BofA and ING Bank N.V., Dublin Branch.
“Register” has the meaning set forth in Section
12.04.
“Regulation D” shall mean
Regulation D of the Board, as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the
Board, as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the
Board, as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
“Related Parties” means, with respect to any
specified Person, such Person’s Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such Person’s
Affiliates.
“Required Lenders” means, at any time, Lenders
having Revolving Credit Exposures and unused Commitments representing more than
50% of the sum of the total Revolving Credit Exposures and unused Commitments
at such time (exclusive in each case of the Commitment(s) and Revolving Credit
Exposure(s) of Defaulting Lenders).
“Revolving Credit Exposure” means, with respect to
any Lender at any time, the sum of the outstanding Dollar Amount of such
Lender’s Revolving Loans and the aggregate Dollar Amount of its LC Exposure and
Swingline Exposure at such time.
“Revolving Loan” means a Loan made pursuant to Section
2.03.
“S&P” means Standard & Poor’s.
“Screen” means (a) with respect to
Dollar-Denominated Loans, the Reuters “LIBOR01” screen displaying British
Bankers’ Association Interest Settlement Rates and (b) with respect to
Alternative Currency Loans, the Reuters screen selected by the Administrative
Agent that displays rates for interbank deposits in the appropriate Alternative
Currency or, in the case of either (a) or (b), any successor or substitute screen
provided by Reuters, or any successor to or substitute for such service,
providing rate quotations comparable to those currently provided on such screen,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in the London
interbank market.
21
“Securitization Financing” means, at any date, the
aggregate amount of financing raised through securitization transactions by the
Company and its Consolidated Subsidiaries and outstanding at such date to the
extent the same do not give rise to Indebtedness of the Company or a
Consolidated Subsidiary.
“Significant Subsidiary” means (a) each of Cummins
Engine IP, Inc., Cummins Filtration IP, Inc., Cummins Intellectual Property,
Inc., Cummins PowerGen IP, Inc., Cummins Filtration Inc. and Cummins Power
Generation Inc. and (b) any Subsidiary (which term, as used in this definition,
includes such Subsidiary’s subsidiaries) which meets any of the following
conditions:
“Spot Rate” means, for any Alternative Currency on
any day, the average of the Administrative Agent’s spot buying and selling
rates for the exchange of such Alternative Currency and Dollars as of
approximately 11:00 A.M. (London time) on such day.
“Statutory Reserve Rate” means a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to
as “Eurocurrency Liabilities” in Regulation D). Such reserve percentages
shall include those imposed pursuant to Regulation D. Euro-Currency Loans
shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under
Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.
22
“subsidiary” means, with respect to any Person
(herein referred to as the “parent”), any corporation, association or
other business entity of which securities or other ownership interests
representing more than 50% of the ordinary voting power are, at the time any
determination is being made, owned, controlled or held by the parent or one or
more subsidiaries of the parent.
“Subsidiary” means any subsidiary of the Company.
“Swap Agreement” means any agreement with respect
to any swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or value
or any similar transaction or any combination of these transactions; provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Company or the Subsidiaries shall be a Swap Agreement.
“Swingline Exposure” means, at any time, the
aggregate Dollar Amount of all Swingline Loans outstanding at such time. The
Swingline Exposure of any Lender at any time shall be its Applicable Percentage
of the total Swingline Exposure at such time.
“Swingline Lender” means each of BofA, JPMCB and
ING Bank N.V., Dublin Branch, in its capacity as lender of Swingline Loans
hereunder.
“Swingline Lending Office” means, as to each
Swingline Lender, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Swingline Lending Office) or such other office as such Swingline Lender
may hereafter designate as its Swingline Lending Office by notice to the
Company and the Administrative Agent.
“Swingline Loan” means a Loan made pursuant to Section
2.04.
“Syndication Agent” means BofA, in its capacity as
syndication agent in respect of this Agreement.
“Taxes” means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
“Terminating Lender” has the meaning set forth in Section 2.24(d).
“Total Debt” means the Indebtedness of the Company
and its Subsidiaries, Consolidated in accordance with GAAP; provided
that the term “Total Debt” shall in any event exclude (i) contingent
obligations of the Company or any Subsidiary in respect of letters of credit,
unless such letter of credit supports other Indebtedness of any Person other
than the Company and its Subsidiaries and (ii) net obligations under Swap
Agreements.
23
“Transactions” means the execution, delivery and
performance by the Credit Parties of the Loan Documents, the borrowing of Loans
and the issuance of Letters of Credit hereunder.
“Type”, when used in reference to any Loan or
Borrowing, refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate
or the Alternate Base Rate.
“United States” or “U.S.” means the United
States of America, including the States thereof and the District of Columbia,
but excluding its territories and possessions.
“Wholly-Owned Consolidated Subsidiary” means any
Consolidated Subsidiary all of the shares of capital stock or other ownership
interests of which (except directors’ qualifying shares) are at the time owned
by the Company or one or more Wholly-Owned Consolidated Subsidiaries.
“Withdrawal Liability” means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
“Withholding Agent” has the meaning assigned to
such term in Section 2.16(a).
24
Section 2.02. Loans
and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments
of the Lenders are several and no Lender shall be responsible for any other
Lender’s failure to make Loans as required.
25
(c)
At the time that any Revolving Borrowing is made, such Borrowing
shall be (i) in the case of a
Dollar-Denominated Borrowing, in an aggregate Dollar Amount that is not less
than $10,000,000 and an integral multiple of $1,000,000 and (ii) in the case of a Borrowing denominated in an
Alternative Currency, in an aggregate amount in such Alternative Currency that
is not less than 10,000,000 units of such Alternative Currency and an integral
multiple of 1,000,000 units of such Alternative Currency; provided that
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(f).
Each Swingline Loan shall be in a Dollar Amount that is an integral multiple of
$100,000 and not less than $500,000, or, in the case of a Swingline Loan
denominated in an Alternative Currency, in an amount in such Alternative
Currency that is an integral multiple of 100,000 units of such Alternative
Currency and not less than 500,000 units of such Alternative Currency.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten
Euro-Currency Borrowings outstanding.
Section 2.03. Requests
for Revolving Borrowings. To request a Revolving Borrowing, the Borrower shall
notify the Administrative Agent of such request (a) in the case of a Euro-Dollar Borrowing, by telephone not later than 11:00 a.m., New
York City time, three Euro-Dollar Business Days before the date of the
proposed Borrowing, (b) in the case of an
Alternative Currency Borrowing, in writing at its London office not later than
11:00 a.m. London time, three Euro-Currency Business Days before the date of
the proposed Borrowing or (c) in the case of
an ABR Borrowing, by telephone not later than 11:00 a.m., New York City
time, one Domestic Business Day before the date of the proposed Borrowing; provided
that any such notice of an ABR Revolving Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.05(f) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed Borrowing.
Each such Borrowing Request shall be irrevocable and each such telephonic
Borrowing Request shall be confirmed promptly by hand delivery or facsimile to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
26
If no election as to the Type of Revolving Borrowing
denominated in Dollars is specified, then the requested Revolving Borrowing
shall be a Euro-Dollar Borrowing with an Interest Period of one month’s
duration. If no Interest Period is specified with respect to any requested
Euro-Currency Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04. Swingline
Loans. (a) Subject to the terms and conditions
set forth herein, each Swingline Lender agrees to make Swingline Loans to any
Borrower in an Alternative Currency or (solely in the case of Swingline Loans
made by JPMCB and BofA) in Dollars, as the Borrower elects, from time to time
during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding a Dollar Amount
equal to $200,000,000, (ii) the aggregate principal
amount of outstanding Swingline Loans made by any Swingline Lender exceeding a
Dollar Amount equal to $67,000,000, (iii) the total Revolving Credit Exposures of all Lenders exceeding the total Commitments or (iv) the Alternative Currency Exposure exceeding the
Alternative Currency Sublimit; provided that no Swingline Lender shall be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.
(b)
To request a Swingline Loan, the Borrower shall notify the
applicable Swingline Lender (with a copy to the Administrative Agent) of such
request by telephone (confirmed by facsimile or electronic communication, if
arrangements for doing so have been approved by the applicable Swingline
Lender), (i) in the case of an Alternative
Currency Borrowing or a Euro-Dollar Borrowing, at its London office no later
than 12:00 (noon) London time on the date of the proposed Swingline Loan
(provided that the Borrower shall confirm such request by facsimile (or
electronic communication, if arrangements for doing so have been approved by
the applicable Swingline Lender) no later than 12 (noon) London time on the
date of the proposed Swingline Loan), and (ii) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time,
on the day of a proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Domestic Business Day in
the case of Dollar-Denominated Loans or a Euro-Currency Business Day in the
case of an Alternative Currency Loan), currency and amount of the requested
Swingline Loan and the location and number of the Borrower’s account to which
the funds are to be disbursed. Each Swingline Lender shall make each Swingline
Loan to be made by it available to the Borrower by means of a credit to the
account designated by the Borrower for such purpose (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(f), by remittance to the applicable Issuing Bank) by
(i) 4:00 p.m. London time, in the case of Alternative Currency Loans and (ii)
4:00 p.m., New York City time, in the case of Dollar-Denominated Loans, on
the requested date of such Swingline Loan.
27
(c)
Any Swingline Lender may by written notice given to the
Administrative Agent not later than (i) 10:00 a.m., London time, on any Euro-Currency Business Day, in the case of Alternative
Currency Loans or (ii) 10:00 a.m., New York City
time, on any Domestic Business Day, in the case of Dollar-Denominated Loans,
require the Lenders to acquire participations on such Euro-Currency Business
Day or Domestic Business Day (as applicable) in all or a portion of its
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of such Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Swingline Loans. Each Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph
by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to such Swingline
Lender the amounts so received by it from the Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to such Swingline Lender. Any amounts received by such Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in respect
of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to such
Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to such Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.
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Section 2.05. Letters
of Credit. (a) Existing Letters of Credit.
On the Effective Date, without further action by any party hereto, each
applicable Issuing Bank shall be deemed to have granted to each Lender, and
each Lender shall be deemed to have acquired from such Issuing Bank, a
participation in each Existing Letter of Credit equal to such Lender’s
Applicable Percentage of (i) the aggregate amount
available to be drawn thereunder and (ii) the aggregate unpaid amount of any outstanding reimbursement obligations in respect
thereof. Such participations shall be on all the same terms and conditions as
participations granted in Additional Letters of Credit under Section 2.05(e).
29
(d)
Expiration Date. Each Letter of Credit shall expire
at or prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Additional Letter of Credit or, in the
case of any renewal or extension thereof, one year after such renewal or
extension (or, if any such day is not a Euro-Currency Business Day, the next
preceding Euro-Currency Business Day) and (ii) the LC Termination Date; provided
that an Additional Letter Credit may expire after, but in any event no later
than one year after, the LC Termination Date, if such Additional Letter of
Credit is cash collateralized in accordance with Section 2.05(k) or backed by a
standby letter of credit from a financial institution with a rating of A2 or
higher from Moody’s or A or higher from S&P on the date of its issuance,
renewal or extension (as applicable), in each case in an amount and on terms
satisfactory to the Administrative Agent and the applicable Issuing Bank. The
expiry date of any Letter of Credit may be extended from time to time (i) at
the Borrower’s request in accordance with (c) above or (ii) in the case of an
Evergreen Letter of Credit, automatically, in each case so long as such
extension (A) is for a period not exceeding one year, (B) is granted (or the
last day on which notice can be given to prevent such extension occurs) no
earlier than three months before the then existing expiry date thereof and (C) does not extend beyond the LC Termination Date (unless the requirements of the proviso
set forth in the prior sentence are satisfied).
(f)
Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement in the currency of such LC Disbursement (i) if such LC Disbursement shall have been
denominated in Dollars, not later than 2:00 p.m., New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 9:00 a.m., New York City time, on such
date, or, if such notice has not been received by the Borrower prior to such
time on such date, then not later than 2:00 p.m., New York City time, on (x) the Domestic Business Day that the Borrower receives
such notice, if such notice is received prior to 9:00 a.m., New York City time,
on the day of receipt or (y) the Domestic Business
Day immediately following the day that the Borrower receives such notice, if
such notice is not received prior to such time on the day of receipt and (ii) if such LC Disbursement shall have been
denominated in an Alternative Currency, not later than 12:00 noon, London time,
on the Euro-Currency Business Day following the date that such LC Disbursement
is made, if the Borrower shall have received notice of such LC Disbursement
prior to 4:00 p.m., London time, on the date such LC Disbursement is made, or,
if such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, London time, on (x)
the Euro-Currency Business Day following the date that the Borrower receives
such notice, if such notice is received prior to 4:00 p.m., London time, on the
day of receipt or (y) the second Euro-Currency
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of
receipt; provided that the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 or 2.04
that such payment be financed with (A) in the case
of LC Disbursements denominated in Dollars, an ABR Revolving Borrowing (of not
less than $10,000,000) or a Swingline Loan (of not less than $500,000) in an
equal amount and (B) in the case of LC
Disbursements denominated in an Alternative Currency, a Euro-Currency Borrowing
for an equivalent amount in such currency and, to the extent so financed, the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan or Euro-Currency
Borrowing. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
such Lender’s Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the applicable
Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank or, to the extent
that Lenders have made payments pursuant to this paragraph
to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank
as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
30
(g)
Obligations Absolute. The Borrower’s obligation to
reimburse LC Disbursements as provided in paragraph (f)
of this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or
any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the applicable Issuing Bank; provided that the foregoing shall not be
construed to excuse such Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the applicable Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
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(i)
Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, (i) if such amount is denominated
in Dollars, at the rate per annum then applicable to ABR Revolving Loans, (ii) if such amount is denominated in an Alternative
Currency, at the rate per annum equal to the sum of the Applicable Rate with
respect to Euro‑Currency Loans plus the rate per annum at which one-day
deposits in relevant currency in an amount approximately equal to such unpaid
amount are offered by the principal London office of the Administrative Agent
in the London interbank market for such day; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then 2% per annum
shall be added to the applicable rate specified above. Interest accrued
pursuant to this paragraph shall be for the account
of the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (f)
of this Section to reimburse such Issuing Bank shall be for the account of such
Lender to the extent of such payment.
32
(k)
Cash Collateralization. If any Event of Default shall
occur and be continuing (but, except in the case of an Event of Default under
clause (b), (c), (g) or (h) of Article 8, only if the maturity of any then
outstanding Loans shall have been accelerated and the Commitments terminated pursuant
to Article 8), on the Domestic Business Day that the Company receives notice
from the Administrative Agent given upon request of the Required Lenders (or,
if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit
of cash collateral pursuant to this paragraph,
the Company shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash in each relevant currency equal to the LC Exposure in such currency as
of such date plus any accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral will become effective
immediately, and such deposit will become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to any Borrower described in clause (g) or (h) of Article 8. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Company hereby grants a lien and security interest in, and sole and exclusive
dominion and control, including the exclusive right of withdrawal, over such
account to the Administrative Agent. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrowers’ risk and
expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Banks for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after
all Events of Default have been cured or waived free and clear of all Liens
created hereunder.
33
Section 2.06. Funding
of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof:
The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower designated by the Borrower in the applicable
Borrowing Request; provided that Loans made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
Each Lender may, at its option, make any Loan available to
any Borrower not organized in the United States by causing any foreign or
domestic branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of such
Borrower to repay such Loan in accordance with the terms of this Agreement.
34
(b)
Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a)
of this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate (if such amount was
distributed in Dollars) or the rate per annum at which one‑day deposits
in the relevant currency are offered by the principal London office of the
Administrative Agent in the London interbank market (if such amount was
distributed in an Alternative Currency).
Section 2.07. Interest
Elections. (a) Each Dollar-Denominated
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Euro-Dollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter,
the Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Euro-Dollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
35
If any such Interest Election Request requests a
Euro-Dollar Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.
36
(b)
The Company may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $10,000,000 and (ii) the Company shall not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section 2.10, the
total Revolving Credit Exposures of all Lenders would exceed the total
Commitments.
(c)
The Company shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b)
of this Section at least five Domestic Business Days prior to the effective
date of such termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments under this Section
2.08 shall be made ratably among the Lenders in accordance with their
respective Commitments.
Section 2.09. Repayment
of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date, and (ii) to each Swingline Lender the then unpaid principal amount of each of its Swingline
Loans on the earlier of the Maturity Date and the date which is 15 Domestic Business Days after such Swingline Loan is
made.
(c)
The Administrative Agent shall maintain accounts in which it
shall record (i) the currency and amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.
37
(d)
The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Loans in accordance with
the terms of this Agreement.
Section 2.10. Prepayment
of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b)
of this Section.
(b)
The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the applicable Swingline Lender) by
telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case of prepayment of a Euro-Dollar
Borrowing, not later than 11:00 a.m., New York City time, three Euro-Dollar
Business Days before the date of prepayment, (ii) in the case of prepayment of an Alternative Currency Borrowing, to its London office
not later than 11:00 a.m. London time three Euro-Currency Business Days before
the date of prepayment, (iii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Domestic Business Day before the date of prepayment or (iv) in the case of prepayment of a Swingline
Loan, not later than 12:00 noon, New York City time (London time if such
Swingline Loan is denominated in Alternative Currencies or made to a Borrower
other than the Company), on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment under this Section 2.10 shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
Section 2.11. Fees.
(a) Subject to Section 2.23, the Company
agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee in Dollars, which shall accrue at the Applicable Rate on the
daily unused amount of the Commitment of such Lender (other than a Defaulting
Lender and disregarding, solely for purposes of computation of such fee,
outstanding Swingline Loans) during the period from and including the Effective
Date to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof.
All commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
38
(b)
Subject to Section 2.23, the Borrower agrees to pay (i) to the Administrative Agent for the account of
each Lender a participation fee with respect to its participation in each
Letter of Credit in the currency of such Letter of Credit, which shall accrue
during each Calendar Quarter (or shorter period commencing on the Effective
Date and ending on the last day of the Calendar Quarter in which the Effective
Date occurs) at a rate per annum equal to the Euro-Currency Margin (determined
for this purpose on the first Domestic Business Day of such Calendar Quarter or
shorter period) (or, in the case of performance standby Letters of Credit, with
respect to nonfinancial contractual obligations only, at a rate per annum equal
to 75% of the Applicable Margin) on such Lender’s daily LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the
date on which such Lender’s Commitment terminates and the date on which such
Lender ceases to have any LC Exposure and (ii) to each Issuing Bank a fronting fee in the currency of the applicable Letter of
Credit, which shall accrue at the rate of 0.125% per annum on the average daily
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the applicable Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable on the
third Domestic Business Day following such last day, commencing on the first
such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand.
All participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day), except that fees payable
in Pounds Sterling shall be computed on the basis of a year of 365 days (or
366 days in a leap year).
39
Section 2.12. Interest.
(a) The Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(c)
The Loans comprising each Swingline Borrowing shall bear
interest, at the election of the applicable Borrower, at (x) solely in the case of Swingline Loans denominated in
Dollars, the Alternative Base Rate plus the Applicable Rate, (y) the Adjusted LIBO Rate that would be applicable to
Euro-Currency Loans in the applicable currency with a one-month Interest Period
commencing on the date such loan is made, plus the Applicable Rate, or (z) prior to any funding by the Lenders of their
participations therein pursuant to Section 2.04(c), at such other rate as shall
from time to time be agreed between the applicable Swingline Lender and the
applicable Borrower.
(e)
Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this
Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Euro-Dollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(f)
All interest hereunder shall be computed on the basis of a year of
360 days, except that (i) interest computed by
reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and (ii) interest
computed with respect to Loans denominated in Pound Sterling shall be computed
on the basis of a year of 365 days, and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
40
then the Administrative Agent shall give notice
thereof to the Company and the Lenders by telephone or facsimile as promptly as
practicable thereafter and, until the Administrative Agent notifies the Company
and the Lenders that the circumstances giving rise to such notice no longer
exist (which the Administrative Agent shall do promptly after becoming aware
thereof), (i) any Interest Election Request that requests the conversion of any
Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Euro-Currency Borrowing of the affected currency shall be ineffective and (ii)
if any Borrowing Request requests a Euro-Currency Borrowing in the affected
currency, such Borrowing shall be made as an ABR Borrowing in an equal Dollar
Amount.
and the result of any of the foregoing shall be to
increase the cost to such Lender (or its Applicable Lending Office) of making
or maintaining any Euro-Currency Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender (or its Applicable Lending
Office) or such Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or Swingline Loan or to reduce the amount of any sum received
or receivable by such Lender (or its Applicable Lending Office) or such Issuing
Bank hereunder (whether of principal, interest or otherwise), then the Company
will pay (or will cause the relevant Borrower to pay) to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
41
(d)
A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a), (b) or (c) of this Section and the
calculation of such amount or amounts in reasonable detail shall be delivered
to the Company and shall be conclusive absent clearly demonstrable error. The
Company or the relevant Borrower, as the case may be, shall pay such Lender or
such Issuing Bank, as the case may be, the amount shown as due on any such
certificate free of clearly demonstrable error within 15 days after
receipt thereof. In requesting any compensation pursuant to this Section, each
Lender or Issuing Bank will use good faith efforts to treat the applicable Borrower
in substantially the same manner as such Lender or Issuing Bank treats other
similarly situated borrowers under similar circumstances.
42
Section 2.15. Break
Funding Payments. In the event of (a) the payment of any principal of any Euro-Currency Loan (or Swingline Loan that is not an
ABR Loan) other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any Euro-Dollar Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Euro-Currency Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.10(b) and is revoked in accordance
therewith) or (d) the assignment of any
Euro-Currency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the relevant Borrower shall compensate each Lender for
the loss (excluding loss of margin), cost and expense attributable to such
event. Such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits in Dollars
or other applicable currency of a comparable amount and period from other banks
in the London interbank market; provided, however, that such
Borrower shall not be required to compensate any Lender for any costs of
terminating or liquidating any hedge or trading position (including any rate
swap, basis swap, forward rate transaction, interest rate option, cap, collar
or floor transaction, or any similar transaction). A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section and the calculation of such amount or amounts in
reasonable detail shall be delivered to the Borrower and shall be conclusive
absent clearly demonstrable error. The Borrower shall pay such Lender the
amount shown as due on any such certificate free of clearly demonstrable error
within 10 days after receipt thereof.
Section 2.16.
Taxes. (a) Any and all payments
by or on account of any obligation of any Borrower under the Loan Documents shall
be made free and clear of and without deduction for any Taxes, except as
required by applicable law. If any Borrower or the Administrative Agent (the “Withholding
Agent”) shall be required to deduct any Indemnified Taxes or Other Taxes
from or in respect of any sum payable under the Loan Documents to any Lender,
Issuing Bank or the Administrative Agent, then (i) the sum payable by such
Borrower shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Withholding Agent shall make such deductions and
(iii) the Withholding Agent shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
43
44
45
46
Section 2.18. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment of principal of, and interest on, the
Dollar-Denominated Loans, of LC Exposures denominated in Dollars and of fees
hereunder, not later than 12:00 noon (New York City time) on the date when due,
in Dollars in funds immediately available in New York City. The Borrower shall
make each payment of principal of, and interest on, the Alternative Currency
Loans and of LC Exposures denominated in an Alternative Currency in the
relevant Alternative Currency in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency. Each
such payment shall be made without reduction by reason of any set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Domestic Business Day (in the case of amounts denominated in
Dollars) or Euro-Currency Business Day (in the case of amounts denominated in
an Alternative Currency) for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York, except payments to
be made directly to an Issuing Bank or a Swingline Lender as expressly provided
herein and except that payments pursuant to Sections 2.14, 2.15, 2.16, 2.17 and
12.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a Domestic
Business Day (in the case of ABR Loans and LC Exposures denominated in Dollars)
or a Euro‑Currency Business Day (in the case of Euro-Currency Loans and
LC Exposures denominated in an Alternative Currency), the date for payment
shall be extended to the next succeeding Domestic Business Day (in the case of
ABR Loans and LC Exposures denominated in Dollars) or Euro-Currency Business
Day (in the case of Euro-Currency Loans and LC Exposures denominated an
Alternative Currency), and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
47
48
(e)
If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(e), 2.05(f), 2.06(b), 2.18(d) or 12.03(c),
then the Administrative Agent may, in its discretion and notwithstanding any
contrary provision hereof, (i) apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender under this Agreement for the benefit of the Administrative Agent, any
Swingline Lender or any Issuing Bank to satisfy such Lender’s obligations to it
under such Section until all such unsatisfied obligations are fully paid,
and/or (ii) hold any such amounts in a segregated
account as cash collateral for, and application to, any future funding
obligations of such Lender under any such Section, in the case of each of clauses
(i) and (ii) above, in any order as determined by the Administrative Agent in
its discretion.
Section 2.19. Mitigation
Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.14 or 2.17, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different
Applicable 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 2.14, 2.16 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The
Company hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
49
Section 2.20. Currency
Equivalents. (a) The Administrative Agent
shall determine the Dollar Amount of each Alternative Currency Loan as of the
first day of each Interest Period applicable thereto (or, in the case of a
Swingline Loan, the date of borrowing) and, in the case of any such Interest
Period of more than three months, at three-month intervals after the first day
thereof, and shall promptly notify the Borrower and the Lenders of each Dollar
Amount so determined by it. Each such determination shall be based on the Spot
Rate (i) on the date of the related Borrowing
Request (or request pursuant to Section 2.04) for purposes of the initial such
determination for any Alternative Currency Loan and (ii) on the fourth Euro-Currency Business Day prior to the date as of which such Dollar
Amount is to be determined, for purposes of any subsequent determination.
The “Euro-Currency Margin” at any date is a rate
per annum equal to the then applicable rate set forth in the “Pricing Grid”
below under the column headed “Euro-Currency Margin.”
The “ABR Margin” at any date is a rate per annum
equal to the then applicable rate set forth in the “Pricing Grid” below under
the column headed “ABR Margin.”
The “Commitment Fee Rate” at any date is a rate per
annum equal to the then applicable rate set forth in the “Pricing Grid” below
under the column headed “Commitment Fee.”
50
|
Pricing
Grid
|
|
Pricing
Level
|
Commitment
Fee
|
Euro-Currency
Margin
|
ABR
Margin
|
|
I
|
0.06%
|
0.75%
|
0.00%
|
|
II
|
0.08%
|
0.875%
|
0.00%
|
|
III
|
0.10%
|
1.00%
|
0.00%
|
|
IV
|
0.15%
|
1.25%
|
0.25%
|
|
V
|
0.20%
|
1.50%
|
0.50%
|
For purposes of the foregoing
table, the following terms have the following meanings, subject to the further
provisions of this Section:
“Level I Pricing” applies at any date if, at such
date, at least two of the following three ratings apply: A+ or higher by
S&P, A1 or higher by Moody’s, and A+ or higher by Fitch.
“Level II Pricing” applies at any date if, at such
date (i) no better Pricing Level applies and (ii) at least two of the following
three ratings apply: A or higher by S&P, A2 or higher by Moody’s, and A or
higher by Fitch.
“Level III Pricing” applies at any date if, at such
date (i) no better Pricing Level applies and (ii) at least two of the following
three ratings apply: A- or higher by S&P, A3 or higher by Moody’s, and A-
or higher by Fitch.
“Level IV Pricing” applies at any date if, at such
date, (i) no better Pricing Level applies and (ii) at least two of the
following three ratings apply: BBB+ or higher by S&P, Baa1 or higher by
Moody’s, and BBB+ or higher by Fitch.
“Level V Pricing” applies at any date if, at such
date, no other Pricing Level applies.
“Pricing Level” refers to the determination of
which of Level I, Level II, Level III, Level IV or Level V Pricing applies at
any date. A “better” Pricing Level is one with a lower roman numeral.
“Rating Agency” means S&P, Moody’s or Fitch
(and their successors).
In the event that ratings are not available from all three
Rating Agencies, (a) if ratings are available from two Rating Agencies but are
not equivalent, then (i) if the ratings differential is one ratings level, the
Pricing Level shall be that applicable to the higher of the two ratings and
(ii) if the ratings differential is two rating levels or more, the Pricing
Level shall be that which would be applicable to a rating which is one rating
level below the higher of the two ratings, (b) if a rating from only one
Rating Agency is available, then the Pricing Level shall be that applicable to
such rating and (c) if ratings are not available from any of the three
Rating Agencies, then Level V Pricing shall apply.
51
The credit ratings to be utilized for purposes of this
Section are those assigned by S&P, Fitch or Moody’s to the senior unsecured
long-term debt securities of the Company without third-party credit
enhancement, and any rating assigned to any other debt security of the Company
shall be disregarded; provided that if no such rating is available from
any one or more of the three Rating Agencies, the ratings used for purposes of
determining the Pricing Level with respect to each such Rating Agency shall be
the corporate family rating assigned by such Rating Agency to the Company. The
rating in effect at any date is that in effect at the close of business on such
date. If the rating system of any Rating Agency shall change, or if any Rating
Agency shall cease to be in the business of rating corporate debt obligations,
the Company and the Administrative Agent shall negotiate in good faith to amend
this Section to reflect such changed rating system or the nonavailability of
ratings from such Rating Agency and, pending the effectiveness of any such
amendment, the Pricing Level shall be determined by reference to the rating
most recently in effect prior to such change or cessation.
Section 2.22. Illegality.
(a) If, after the Effective Date, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Euro-Currency Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Lender (or its
Euro-Currency Lending Office) to make, maintain or fund its Euro-Currency Loans
to any Borrower and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Company, whereupon until such Lender notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist (which such Lender shall do promptly after becoming aware
thereof), the obligation of such Lender to make Euro-Currency Loans to such
Borrower, or to convert outstanding Loans to such Borrower into Euro-Dollar
Loans, shall be suspended. If such notice is given with respect to Euro-Dollar
Loans, each Euro-Dollar Loan of such Lender then outstanding shall be converted
to an ABR Loan either (i) on the last day of the
then current Interest Period applicable to such Euro-Dollar Loan if such Lender
may lawfully continue to maintain and fund such Euro-Dollar Loan to such day or
(ii) immediately if such Lender shall determine
that it may not lawfully continue to maintain and fund such Euro-Dollar Loan to
such day. If such notice is given with respect to Alternative Currency Loans,
the relevant Borrower shall prepay such Alternative Currency Loans either (i)
on the last day of the then current Interest Period applicable to such
Alternative Currency Loan if such Lender may lawfully continue to maintain and
fund such Alternative Currency Loan to such day or (ii) immediately if such
Lender shall determine that it may not lawfully continue to maintain and fund
such Alternative Currency Loan to such day.
52
(ii)
if the reallocation described in clause (i) above cannot, or can
only partially, be effected, the Borrower shall within three Domestic Business
Days following notice by the Administrative Agent (x)
first, prepay such Swingline Exposure and (y) second,
either (A) procure the reduction or termination of
the Defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) or (B) cash collateralize for the benefit of the Issuing Banks only the Borrower’s
obligations corresponding to such Defaulting Lender’s LC Exposure (after giving
effect to any partial reallocation pursuant to clause (i) above) in accordance
with the procedures set forth in Section 2.05(k) for so long as such LC
Exposure is outstanding;
53
If a Swingline Lender or an Issuing Bank has a good faith
belief that any Lender has defaulted in fulfilling its funding obligations
under one or more other agreements in which such Lender commits to extend
credit, no Swingline Lender shall be required to fund any Swingline Loan and
any Issuing Bank shall not be required to issue, amend or increase any Letter
of Credit, unless the Swingline Lenders or the Issuing Banks, as the case may
be, shall have entered into arrangements with the Borrower or such Lender,
reasonably satisfactory to the Swingline Lenders or the Issuing Banks, as the
case may be, to defease any risk to the Swingline Lenders or the Issuing Banks
in respect of such Lender hereunder relating to Swingline Exposure and/or LC
Exposure.
54
In the event that the Administrative Agent, the Borrower,
the Swingline Lenders and the Issuing Banks reasonably determine that a
Defaulting Lender has adequately remedied all matters that caused such Lender
to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the
Lenders shall be readjusted to reflect the inclusion of such Lender’s
Commitment and on such date such Lender shall purchase at par such of the Loans
of the other Lenders (other than Swingline Loans) as the Administrative Agent
shall determine is necessary in order for such Lender to hold such Loans in
accordance with its Applicable Percentage; provided that there shall be
no retroactive effect on fees reallocated pursuant to Section 2.23(b)(iv) and (v).
(b)
If any Lender rejects, or is deemed to have rejected, the
Borrower’s proposal to extend its Commitment (i) this Agreement shall terminate
on the Maturity Date with respect to such Lender, (ii) the Borrower shall pay
to such Lender on the Maturity Date any amounts due and payable to such Lender
on such date and (iii) the Borrower may, if it so elects, designate a Person
not theretofore a Lender and reasonably acceptable to the Administrative Agent
to become a Lender, or agree with an existing Lender that such Lender’s
Commitment shall be increased, provided that the aggregate amount of the
Commitments following any designation or agreement may not exceed the aggregate
amount of the Commitments as in effect immediately prior to the relevant
request. Upon execution and delivery by the Borrower and such replacement
Lender or other Person of an instrument of assumption in form and amount
reasonably satisfactory to the Administrative Agent and execution and delivery
of the Extension Agreement pursuant to Section 2.24(a), such existing Lender
shall have a Commitment as therein set forth or such other Person shall become
a Lender with a Commitment as therein set forth and all the rights and obligations
of a Lender with such a Commitment hereunder.
55
(c)
The Administrative Agent shall promptly notify the Lenders and
the Company of the effectiveness of each extension of the Commitments pursuant
to this Section 2.24.
The Company and each Original Subsidiary Borrower
represents and warrants as of the Effective Date (and as of each subsequent
date required under Section 4.02) to the Administrative Agent and the Lenders
that:
Section 3.01. Organization;
Powers. It and each Significant Subsidiary (a) is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, except where the
failure to have such power and authority could not reasonably be expected to
result in a Material Adverse Effect, (c) is qualified to do business in every jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each
Loan Document to which it is a party and under each other agreement or
instrument contemplated thereby to which it is or will be a party and, in the
case of any Borrower, to borrow hereunder.
Section 3.02. Authorization.
The Transactions (a) have been duly authorized
by all requisite corporate, partnership, limited liability company or analogous
and, if required, stockholder, partner, member or analogous action and (b) will not (i) materially violate any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of any Credit Party or any Significant Subsidiary, (ii) materially violate any order of any Governmental
Authority or (iii) materially violate any provision
of any material indenture, agreement or other instrument to which any Credit
Party or any Significant Subsidiary is a party or by which any of them or any
of their property is or may be bound, (iv) be in material conflict with, result in a material breach of or constitute (alone or
with notice or lapse of time or both) a material default under any such
indenture, agreement or other instrument or (v)
result in the creation or imposition of any Lien upon any property or assets of
any Credit Party or any Significant Subsidiary (other than under any Loan
Document).
56
Section 3.05. Financial
Statements. (a) The Company has heretofore
furnished to the Lenders (i) its Consolidated
balance sheet and related Consolidated statements of earnings, cash flows and
shareholders’ equity as of and for the fiscal year ended December 31, 2011,
audited by and accompanied by the opinion of Pricewaterhouse Coopers LLP, independent
public accountants and (ii) its Consolidated
balance sheet and related Consolidated statements of earnings and cash flows as
of and for the fiscal quarter ended September 30, 2012, certified by its chief
financial officer. Such financial statements present fairly in all material
respects the financial position of the Company and its Consolidated
Subsidiaries as of such dates and their results of operations and cash flows
for such periods. Such statements of financial position and the notes thereto
disclose all material liabilities, direct or contingent, of the Company and its
Consolidated Subsidiaries as of the dates thereof required to be disclosed
under GAAP. Such financial statements were prepared in accordance with GAAP
applied on a consistent basis.
Section 3.06. Litigation;
Compliance with Laws. (a) There are not any
actions, suits, proceedings or governmental investigations at law or in equity
or by or before any Governmental Authority now pending or, to the knowledge of
the Company or Original Subsidiary Borrower, threatened in writing against the
Company or any Subsidiary or any business, property or rights of any such
Person (i) which involve the Loan Documents or the
Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination which could, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
57
Section 3.08. No
Regulatory Restrictions on Borrowing. Neither the Company nor any other
Borrower is (a) an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) subject to any other applicable
regulatory scheme which restricts its ability to incur the indebtedness to be
incurred hereunder.
58
(a)
The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart
of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include
facsimile transmission or e-mail of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
59
The Administrative Agent shall notify the Company and
the Lenders of the Effective Date, and such notice shall be conclusive and
binding. The Company and the Lenders party to the Existing Credit Agreement
hereby agree that upon the Effective Date: (i) the commitments of the banks
under the Existing Credit Agreement shall terminate in their entirety
immediately and automatically on the Effective Date, and such Existing Credit
Agreement shall be terminated, without further action by any party to the
Existing Credit Agreement, (ii) all participations created thereunder in the
Existing Letters of Credit shall terminate and (iii) subject to Section 2.15 of
the Existing Credit Agreement, the Company may prepay any and all loans
outstanding (and terminate the commitments) thereunder on the Effective Date
and any requirement for notice of such prepayment or termination shall be
waived.
Each Loan and each issuance, amendment to increase
the amount of, renewal or extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b)
of this Section.
60
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated (other than those backed by a standby letter of credit or cash
collateralized, in each case in amounts and on terms satisfactory to the
Issuing Bank and the Administrative Agent) and all LC Disbursements shall have
been reimbursed, the Company covenants and agrees with the Lenders that it
will, and will cause each of its Subsidiaries or Significant Subsidiaries, as
appropriate, to:
Section 5.01. Existence;
Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except (i) in the case
of each Subsidiary that is not a Borrower to the extent that the failure to
take any such action could not reasonably be expected to have a Material
Adverse Effect or (ii) as otherwise expressly
permitted under Section 6.02.
(b)
Do or cause to be done all things necessary to (i) obtain, preserve, renew, extend and keep in full
force and effect the rights, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names (as applicable) material to the
conduct of its business, (ii) comply in all
material respects with all applicable laws, rules, regulations and orders of
any Governmental Authority, whether now in effect or hereafter enacted, and (iii) at all times maintain and preserve all property
material to the conduct of such business and keep such property in good repair,
working order and condition (ordinary wear and tear excepted) and from time to
time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly conducted at all
times, except in the case of clauses (i), (ii) and (iii) above, to the
extent that the failure to do so could not reasonably be expected to result in
a Material Adverse Effect.
61
62
(c)
concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate,
substantially in the form of Exhibit F hereto, of a Financial Officer (i) certifying that no Default has occurred or, if a
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations in reasonable detail
reasonably satisfactory to the Administrative Agent demonstrating compliance
with the covenants contained in Section 7.01;
Information required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or 5.04(d) above shall be
deemed to have been delivered on the date on which the Company provides notice
to the Administrative Agent that such information has been posted on the
Company’s website on the Internet at www.cummins.com, at
sec.gov/edaux/searches.htm or at another website identified in such notice and
accessible by the Lenders without charge; provided that (i) such notice
may be included in a certificate delivered pursuant to paragraph
5.04(c) and (ii) the Borrower shall deliver paper copies of the information
referred to in paragraphs 5.04(a) or 5.04(b) to any
Lender which requests such delivery.
63
64
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated (other than
those backed by a standby letter of credit or cash collateralized, in each case
in amounts and on terms satisfactory to the Issuing Bank and the Administrative
Agent ) and all LC Disbursements shall have been reimbursed, the Company covenants
and agrees with the Lenders that it will not, and will not cause or permit any
of its Subsidiaries to:
65
(m)
Liens securing Indebtedness other than Indebtedness described in paragraphs (a) through (l) above, to the extent and
only to the extent that the aggregate amount of Priority Indebtedness shall not
exceed 12.5% of the Consolidated assets of the Company and its Consolidated
Subsidiaries as reflected in the annual or quarterly report then most recently
filed by the Company with the Securities and Exchange Commission, determined at
the time such Liens are granted and at the time of any subsequent incurrence of
Indebtedness secured thereby;
66
Section 6.03.
Priority Indebtedness. In the case of Subsidiaries, incur,
create, assume or permit to exist any Priority Indebtedness if, immediately
after giving effect to the incurrence thereof, the aggregate amount of Priority
Indebtedness would exceed 12.5% of the Consolidated assets of the Company and
its Consolidated Subsidiaries as reflected in the annual or quarterly report
then most recently filed by the Company with the Securities and Exchange
Commission.
67
If any of the following events (“Events of Default”)
shall occur:
(f)
the Company or any Subsidiary shall (i) fail to pay any of its Indebtedness (excluding Indebtedness owing to the Company or
any of its Subsidiaries) in excess of $100,000,000 in the aggregate when due
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness or (ii) fail to observe or perform any term, covenant or
condition on its part to be observed or performed under any agreement or
instrument relating to any such Indebtedness, when required to be observed or
performed, and such failure shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such
failure is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness or such Indebtedness has been accelerated and such acceleration
has not been rescinded; or any amount of Indebtedness in excess of $100,000,000
shall be required to be prepaid, defeased, purchased or otherwise acquired by
the Company or any Subsidiary (other than by a regularly scheduled required prepayment and other than secured
Indebtedness that becomes due as a result of the voluntary transfer of assets
securing such Indebtedness), prior to the stated maturity thereof;
68
(g)
an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company or any
Significant Subsidiary, or of a substantial part of the property or assets of
the Company or any Significant Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or any
Significant Subsidiary, or for a substantial part of the property or assets of
the Company or any Significant Subsidiary, or (iii) the winding-up or liquidation of the Company or any Significant Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days, or an order or
decree approving or ordering any of the foregoing shall be entered;
(h)
the Company or any Significant Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Significant Subsidiary,
or for a substantial part of the property or assets of the Company or any
Significant Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the
benefit of creditors, (vi) admit in writing its
inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of authorizing
any of the foregoing;
(i)
one or more judgments for the payment of money in an aggregate
amount in excess of $100,000,000 shall be rendered against the Company, any
Significant Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed; provided, however,
that any such judgment shall not be included in the calculation of the
aggregate amount of judgments under this clause (i) if and for so long as (A) the amount of such judgment is covered by a valid
and binding policy of insurance between the defendant and the insurer covering
payment thereof and (B) such insurer, which shall
be rated at least “A” by A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, the amount of such judgment;
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then, and in every such event (other than an event
with respect to any Borrower described in paragraph (g)
or (h) above), and at any time thereafter during the continuance of such event,
the Administrative Agent shall, at the request of the Required Lenders, by
notice to the Company, take either or both of the following actions at the same
or different times: (i) terminate forthwith the Commitments and (ii) declare
the Loans then outstanding to be forthwith due and payable, whereupon the
principal of the Loans, together with accrued interest thereon and any unpaid
accrued fees and all other liabilities of any Borrower accrued hereunder, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by each
Borrower, anything contained herein to the contrary notwithstanding; and upon
the occurrence of any event described in paragraph (g)
or (h) above with respect to any Borrower, the Commitments shall automatically
terminate and the principal of all Loans then outstanding, together with
accrued interest thereon and any unpaid accrued fees and all other liabilities
of the Borrowers accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by each Borrower, anything contained herein
to the contrary notwithstanding.
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Section 9.03. Limited
Duties and Responsibilities of Administrative Agent. The Administrative Agent
shall not have any duties or obligations except those expressly set forth in
the Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing as directed by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in Section
12.02) and (c) except as expressly set forth in any
Loan Document, the Administrative Agent shall not have any duty to disclose,
and shall not be liable to any Lender for the failure to disclose, any
information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
12.02) or in the absence of its own gross negligence or willful misconduct.
The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by
the Company or a Lender, and 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 any Loan
Document, (ii) the contents of any
certificate, report or other document delivered under any Loan Document or in
connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document or (v) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
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Section 9.06. Resignation;
Successor Administrative Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph,
the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Company. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Company, to appoint a
successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the acceptance
of its appointment as a successor Administrative Agent hereunder, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article and Section 12.03 shall
continue in effect for the benefit of such retiring 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 it was acting as
Administrative Agent.
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Each Eligible Subsidiary shall be deemed by the execution
and delivery of its Election to Participate to have represented and warranted
as of the date thereof that:
Section 10.01. Organization; Powers.
Such Eligible Subsidiary (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power
and authority to execute, deliver and perform its obligations hereunder and
under each other agreement or instrument contemplated thereby to which it is or
will be a party and to borrow hereunder and (c) is a Wholly-Owned Consolidated Subsidiary.
Section 10.02. Authorization. The
Transactions and the execution and delivery by such Eligible Subsidiary of its
Election to Participate and the performance by such Eligible Subsidiary of this
Agreement, (a) have been duly authorized by all
requisite corporate, partnership, limited liability company or analogous and,
if required, stockholder, partner, member or analogous action and (b) will not (i) materially violate any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of such Eligible Subsidiary, (ii) materially violate any order of any Governmental Authority or (iii) materially violate any provision of any material indenture, agreement or other
instrument to which such Eligible Subsidiary is a party or by which any of them
or any of their property is or may be bound, (iv) be in material conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a material default under any such indenture,
agreement or other instrument or (v) result in the
creation or imposition of any Lien upon any property or assets of such Eligible
Subsidiary (other than under any Loan Document).
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Section 12.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile, as follows:
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(i) if to the Company, to it at Cummins Inc., 500 Jackson Street, Box 3005, Columbus, Indiana
47202-3005, Attention of Vice President/Chief Investment Officer (Facsimile No.
(812) 377-9990);
(B)
otherwise to JPMorgan Chase Bank, N.A., 500 Stanton
Christiana Road, Newark, DE 19713, Attention of Rima Gandhi (Facsimile No.
302-634-4250);
(iv) if to JPMCB as Issuing Bank, to it at JPMorgan Chase Bank, N.A.,
10420 Highland Manor Drive, Floor 4, Tampa,
Florida 33610, Attention of Standby LC Dept. James Alonzo/Ralph Davis
(Facsimile No. 813-432-5161) and, if such notice concerns a Letter of Credit
denominated in an Alternative Currency, also to it at JPMorgan Europe London
Office (Facsimile No. 44 207 777 2360);
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Section 12.02. Waivers; Amendments.
(a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power under
any Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the
Lenders under the Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a waiver
of any Default, regardless of whether the Administrative Agent, any Lender or
any Issuing Bank may have had notice or knowledge of such Default at the time.
(i)
(A) increase the Commitment of any Lender without the written
consent of such Lender, (B) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each Lender
directly and adversely affected thereby, (C) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly and adversely
affected thereby, (D) change Section 2.18(b) or Section
2.18(c) in a manner that would alter the pro rata sharing of payments required
thereby, or change any provision requiring that funding of amounts by the
Lenders be on a ratable basis, without the written consent of each Lender
directly and adversely affected thereby, (E) change any of the provisions of this Section or the definition of “Required Lenders”
or any other provision of any Loan Document specifying the number or percentage
of Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender, (F) release the Company from its
guaranty under Article 11 hereof, or limit its liability in respect of such
guaranty, without the written consent of each Lender, or (G) change any of the provisions of Section 2.23 without the consent of the Administrative
Agent, the Swingline Lenders and the Issuing Banks; provided that no
consent of any Defaulting Lender shall be required pursuant to clause (D) or (E) above as to any modification that does not
adversely affect such Defaulting Lender in a non-ratable manner;
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(iii)
(A) subject any Eligible Subsidiary or Original Subsidiary
Borrower to any additional obligation without the written consent of such
Borrower, (B) increase the principal of or
rate of interest on any outstanding Loan of any Eligible Subsidiary or Original
Subsidiary Borrower without the written consent of such Borrower, (C) accelerate the stated maturity of any outstanding
Loan of any Eligible Subsidiary or Original Subsidiary Borrower without the
written consent of such Borrower or (D) change this proviso (iii) without the prior written consent of each Eligible
Subsidiary and each Original Subsidiary Borrower.
Section 12.03. Expenses; Indemnity;
Damage Waiver. (a) The Company shall pay (i) all reasonable out‑of‑pocket expenses
incurred by the Administrative Agent, and its Affiliates, including the reasonable
fees, charges and disbursements of one counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by
any Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b)
The Company shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
any actual or prospective claim, litigation, investigation or proceeding,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, relating to (i) the execution or delivery of the Loan Documents or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit) or (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Company
or any of its Subsidiaries, or any Environmental Liability related in any way
to the Company or any of its Subsidiaries; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from (i) the gross negligence or willful misconduct of such Indemnitee or any
of its Affiliates or representatives, (ii) from the material breach in bad
faith by such Indemnitee of its express obligations under the Loan Documents or
(iii) a dispute solely among Indemnitees (other than a dispute involving a claim
against an Indemnitee in its capacity as an arranger or agent in respect of the
Agreement, and in any such event described in this clause (iii) solely to the
extent that the underlying dispute does not arise as a result of any action,
inaction, representation or misrepresentation of, or information provided, or
that was failed to be provided, by or on behalf of, the Company or any of its
Subsidiaries).
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(c)
To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent, any Issuing Bank or any Swingline
Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, such
Issuing Bank or such Swingline Lender, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or such Swingline Lender in its
capacity as such.
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Section 12.04. Successors and
Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) no Credit Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by any Credit Party
without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except
in accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one
or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
(A)
the Company; provided that (x)
no consent of the Company shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund (as defined below)(it being understood
that the Company shall nevertheless receive prompt notice of any such
assignment to a Lender, an Affiliate of a Lender or an Approved Fund) or, if an
Event of Default under paragraph (b), (c), (g) or (h) of Article 8 has occurred and is continuing, any other assignee and (y) 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 ten Euro-Currency Business Days after receipt of
written notice thereof; and
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For the purposes of this Section 12.04(b),
the terms “Approved Fund” and “CLO” have the following meanings:
“Approved Fund” means (a) a CLO and
(b) with respect to any Lender that is a fund which invests in bank loans and
similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
“CLO” means any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by a Lender or an Affiliate of such Lender.
(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after
the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16, 2.17 and 12.03).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 12.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c)
of this Section.
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(c)
(i) Any Lender may, without the consent of any Borrower, the
Administrative Agent, any Issuing Bank or any Swingline Lender, sell participations
to one or more banks or other entities (a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided
that (A) such Lender’s obligations under this
Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) each Borrower, the Administrative Agent, each Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in paragraph
(i) of the first proviso to Section 12.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and Section 2.17 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section
12.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(c) as though it were a Lender. Each Lender that sells
a participation shall, acting solely for this purpose as a non-fiduciary agent
of each Borrower, maintain a register on which it enters the name and address
of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement
(the “Participant Register”); provided that no Lender shall have
any obligation to disclose all or any portion of the Participant Register to
any Person (including the identity of any Participant or any information
relating to a Participant’s interest in any commitments, loans, letters of
credit or its other obligations under this Agreement) 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 or, if different,
under Sections 871(h) or 881(c)
of the Code. The entries in the Participant Register shall be conclusive
absent clearly demonstrable 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.
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(b)
Each Credit Party hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment arising out of
or relating to any Loan Document, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in any Loan Document shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to any Loan
Document against any Credit Party or its properties in the courts of any
jurisdiction.
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Section 12.13. Confidentiality. Each
of the Administrative Agent, the Issuing Banks and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its
and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and will agree to keep such Information
confidential), (b) to the extent requested by
any regulatory authority having jurisdiction over it or in connection with any
pledge or assignment permitted under Section 12.04(d), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to
this Agreement, (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to any Loan
Document or the enforcement of rights hereunder, (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 or
obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Borrower and its obligations under this Agreement, (g) with the prior written consent of the Company or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Company. For the purposes
of this Section, “Information” means all information received from or on
behalf of the Company or any of its Affiliates relating to the Company or its
business or any of its Affiliates or their respective businesses, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Company. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
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Section 12.15. No Fiduciary Duty. Each
Agent, each Lender and their Affiliates (collectively, the “Lender Parties”),
may have economic interests that conflict with those of the Borrowers. Each
Borrower agrees that, except as expressly provided otherwise in Section
12.04(b)(iv), nothing in the Loan Documents will be deemed to create an
advisory, fiduciary or agency relationship or fiduciary or other implied duty
between the Lender Parties and the Borrowers, its stockholders or its
affiliates in connection with the transactions contemplated hereby. The
Borrowers acknowledge and agree that (i) the transactions contemplated by the Loan Documents are arm’s-length commercial
transactions between the Lender Parties, on the one hand, and the Borrowers, on
the other, (ii) in connection therewith and with
the process leading to such transactions contemplated by the Loan Documents
each of the Lender Parties is acting solely as a principal and not the
fiduciary of each of the Borrower, its management, stockholders, creditors or
any other person, (iii) no Lender Party has assumed
an advisory or fiduciary responsibility in favor of any Borrower with respect to
the transactions contemplated hereby or the process leading thereto
(irrespective of whether any Lender Party or any of its affiliates has advised
or is currently advising any Borrower on other matters) and (iv) each Borrower has consulted its own legal and
financial advisors to the extent it deemed appropriate. Each Borrower further
acknowledges and agrees that it is responsible for making its own independent
judgment with respect to the transactions contemplated hereby and the process leading
thereto. Each Borrower agrees that it will not claim that any Lender Party has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to such Borrower, in connection with the transactions contemplated
hereby or the process leading thereto.
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[Signature
pages follow]
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