Exhibit
A
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated as
of March 31, 2009
Among
EASTMAN
KODAK COMPANY
and
KODAK
CANADA INC.
as
Borrowers
and
THE
LENDERS NAMED HEREIN
as
Lenders
and
CITICORP
USA, INC.
as Agent
and
BANK
OF AMERICA, N.A.
as Syndication
Agent
and
CITIGROUP
GLOBAL MARKETS INC.
as Co-Lead Arranger and
Co-Bookrunner
and
BANC
OF AMERICA SECURITIES LLC
as
Co-Lead Arranger and Co-Bookrunner
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01.
|
Certain Defined
Terms
5
|
SECTION
1.02.
|
Computation of Time
Periods
27
|
SECTION
1.03.
|
Accounting
Terms
28
|
SECTION
1.04.
|
Reserves
28
|
ARTICLE
II
AMOUNTS
AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION
2.01.
|
The Advances and Letters of
Credit
28
|
SECTION
2.02.
|
Making the
Advances
28
|
SECTION
2.03.
|
Issuance of and Drawings and
Reimbursement Under Letters of
Credit
29
|
SECTION
2.05.
|
Termination or Reduction of the
Commitments
31
|
SECTION
2.06.
|
Repayment of
Advances
32
|
SECTION
2.07.
|
Interest on
Advances
32
|
SECTION
2.08.
|
Interest Rate
Determination
33
|
SECTION
2.09.
|
Optional Conversion of
Advances
34
|
SECTION
2.10.
|
Prepayments of
Advances
34
|
SECTION
2.11.
|
Increased
Costs
35
|
SECTION
2.12.
|
Illegality
36
|
SECTION
2.13.
|
Payments and
Computations
36
|
SECTION
2.15.
|
Sharing of Payments,
Etc.
39
|
SECTION
2.16.
|
Evidence of
Debt
39
|
SECTION
2.17.
|
Use of
Proceeds
40
|
SECTION
2.18.
|
Cash
Management
40
|
SECTION
2.19.
|
Defaulting
Lenders
41
|
SECTION
2.20.
|
Replacement of Certain
Lenders
43
|
SECTION
2.21.
|
Increase
in the Aggregate
Commitments
44
|
CONDITIONS TO EFFECTIVENESS AND
LENDING
|
SECTION
3.01.
|
Conditions Precedent to
Effectiveness of Section 2.01 under the Existing Credit
Agreement
45
|
SECTION
3.02.
|
Conditions Precedent to Each
Borrowing and
Issuance
48
|
SECTION
3.03.
|
Additional Conditions to
Issuances
48
|
SECTION
3.04.
|
Determinations Under Enabling
Amendment
49
|
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01.
|
Representations and Warranties of
the
Company
49
|
ARTICLE
V
COVENANTS
OF THE COMPANY
SECTION
5.01.
|
Affirmative
Covenants
51
|
SECTION
5.02.
|
Negative
Covenants
57
|
SECTION
5.03.
|
Financial
Covenant
62
|
ARTICLE
VI
EVENTS OF
DEFAULT
SECTION
6.01.
|
Events of
Default
62
|
SECTION
6.02.
|
Actions in Respect of the Letters
of Credit upon
Default
64
|
ARTICLE
VII
GUARANTY
SECTION
7.01.
|
Guaranty; Limitation of
Liability
65
|
SECTION
7.02.
|
Guaranty
Absolute
66
|
SECTION
7.03.
|
Waivers and
Acknowledgments 67
|
SECTION
7.04.
|
Subrogation
67
|
SECTION
7.05.
|
Guaranty
Supplements
68
|
SECTION
7.06.
|
Subordination 68
|
SECTION 7.07.
|
Continuing Guaranty;
Assignments
69
|
ARTICLE
VIII
THE
AGENT
SECTION
8.01.
|
Authorization
and
Action 69
|
SECTION
8.02.
|
Agent
Individually
69
|
SECTION
8.03.
|
Duties of Agent; Exculpatory
Provisions 70
|
SECTION
8.04.
|
Reliance by
Agent
71
|
SECTION
8.05.
|
Indemnification
71
|
SECTION
8.06.
|
Delegation of
Duties 71
|
SECTION
8.07.
|
Resignation of
Agent
72
|
SECTION
8.08.
|
Non-Reliance on Agent and Other
Lenders
72
|
SECTION
8.09.
|
No Other Duties,
etc. 73
|
ARTICLE
IX
MISCELLANEOUS
SECTION
9.01.
|
Amendments,
Waivers
73
|
SECTION
9.02.
|
Notices,
Etc.
74
|
SECTION
9.03.
|
No Waiver;
Remedies
74
|
SECTION
9.04.
|
Costs and
Expenses 74
|
SECTION
9.05.
|
Right of
Set-off
76
|
SECTION
9.06.
|
Binding
Effect 76
|
SECTION
9.07.
|
Assignments and
Participations 76
|
SECTION
9.08.
|
Confidentiality
78
|
SECTION
9.09.
|
Governing
Law
79
|
SECTION
9.10.
|
Execution in
Counterparts
79
|
SECTION
9.11.
|
Jurisdiction 79
|
SECTION
9.12.
|
No Liability of the Issuing
Banks
79
|
SECTION
9.13.
|
PATRIOT Act
Notice
79
|
SECTION
9.14.
|
Release of Collateral;
Termination of Loan
Documents
80
|
SECTION
9.15.
|
Judgment
80
|
SECTION
9.16.
|
Borrowing Base
Amendments 80
|
SECTION
9.17.
|
No Fiduciary Duty
80
|
SECTION
9.18.
|
Waiver of Jury
Trial
81
|
Schedules
Schedule I - Commitments
and Applicable Lending Offices
Schedule II - Subsidiary
Guarantors and Material Subsidiaries
Schedule III - Accounts
Schedule 1.01(a)
- Eligible
Real Property
Schedule 1.01(b) - Non-Revolving
Obligations
Schedule 2.01(b) - Existing
Letters of Credit
Schedule 5.02(a) - Existing
Liens
Schedule 5.02(d) -
Existing
Debt
Schedule 5.02(i) - Investments
Exhibits
Exhibit A
- Form
of Note
Exhibit B - Form
of Notice of Borrowing
Exhibit C
- Form
of Assignment and Acceptance
Exhibit D - Form
of Guaranty Supplement
Exhibit E - Form
of Borrowing Base Certificate
Exhibit F - Form
of Mortgage
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated as
of March 31, 2009
EASTMAN
KODAK COMPANY, a New Jersey corporation (the “Company”), KODAK
CANADA INC., corporation incorporated under the laws of the province of Ontario,
Canada (“Kodak
Canada” and, together with the Company, the “Borrowers” and each,
a “Borrower”),
the banks, financial institutions and other institutional lenders (the “Lenders”) and issuers
of letters of credit (“Initial Issuing
Banks”) listed on Schedule I hereto, CITIGROUP GLOBAL MARKETS INC.
and BANC OF AMERICA SECURITIES LLC, as co-lead arrangers and co-bookrunners,
(the “Arrangers”), BANK OF
AMERICA, N.A., as syndication agent and CITICORP USA, INC. (“CUSA”), as agent (the
“Agent”) for
the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain Defined
Terms. As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
“Account Debtor” means
a Person obligated on an Account.
“Account” has the
meaning specified in the UCC.
“ACH” means automated
clearinghouse transfers.
“Activities” has the
meaning specified in Section 8.02(b).
“Adjustment Date” has
the meaning specified in the definition of “Applicable Margin”.
“Advance” means an
advance by a Lender to the Company as part of a Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance.
“Affected Lender” has
the meaning specified in Section 2.20.
“Affiliate” means, as
to any Person, any other Person that, directly or indirectly, controls, is
controlled by or is under common control with such Person or is a director or
executive officer of such Person. For purposes of this definition,
the term “control” (including the terms “controlling”, “controlled by” and
“under common control with”) of a Person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
“Agent’s Account”
means the account of the Agent maintained by the Agent at Citibank at its office
at Two Penns Way, New Castle, Delaware, Account No. 36852248,
Attention: Bank Loan Syndications.
“Agent’s Group” has
the meaning specified in Section 8.02(b).
“Agent Sweep Account”
has the meaning specified in Section 2.18(b).
“Amendment Effective
Date” means the date upon which the conditions precedent set forth in
Section 4 of the Enabling Amendment are satisfied or waived.
“Applicable Lending
Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
“Applicable Margin”
means:
(i) with
respect to the Revolving Credit Facility-B, 4.00% per annum, in the case of
Eurodollar Rate Advances, and 3.00% per annum, in the case of Base Rate
Advances; provided that on and
after the first Adjustment Date occurring six months after the Amendment
Effective Date, the Applicable Margin will be the rate per annum as determined
pursuant to the pricing grid below based upon the average daily Excess
Availability for the most recently ended fiscal quarter immediately preceding
such Adjustment Date:
Excess
Availability
|
Applicable
Margin for Eurodollar Advances
|
Applicable
Margin for Base Rate Advances
|
≥
$300,000,000
|
4.00%
|
3.00%
|
≥
$100,000,000 but < $300,000,000
|
4.25%
|
3.25%
|
<
$100,000,000
|
4.50%
|
3.50%
|
Any
change in the Applicable Margin resulting from changes in average daily Excess
Availability shall become effective on the date (the “Adjustment Date”)
that is three Business Days after the date on which the last Borrowing Base
Certificate of any fiscal quarter is delivered to the Lenders pursuant to
Section 5.01(h)(ix) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any such Borrowing Base
Certificate is not delivered within the time period specified in
Section 5.01(h)(ix), then, until the date that is three Business Days after
the date on which such Borrowing Base Certificate is delivered, the highest rate
set forth in each column of the above pricing grid shall apply.
In the
event that at any time after the end of a fiscal quarter it is discovered that
the average daily Excess Availability for such fiscal quarter used for the
determination of the Applicable Margin was less than the actual amount of the
average daily Excess Availability for such fiscal quarter, the Applicable Margin
for such prior fiscal quarter shall be adjusted to the applicable percentage
based on such actual average daily Excess Availability for such fiscal quarter
and any additional interest for the applicable period payable as a result of
such recalculation shall be promptly paid to Lenders.
Notwithstanding
the foregoing, upon the implementation of the Default Interest rate pursuant to
Section 2.07(b) hereof, the Applicable Margin shall be the highest rate set
forth in each column of the pricing grid above.
(ii) in
respect of the Revolving Credit Facility-A, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public
Debt Rating
S&P/Moody's
|
Applicable
Margin for
Eurodollar
Rate Advances
|
Applicable
Margin for
Base
Rate Advances
|
Level 1
BBB-
and Baa3 above
|
0.875%
|
0.000%
|
Level 2
BB+
and Ba1
|
1.250%
|
0.250%
|
Level 3
BB
and Ba2
|
1.500%
|
0.500%
|
Level 4
Lower
than Level 3
|
2.000%
|
1.000%
|
“Applicable
Percentage” means, as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth
below:
Public
Debt Rating
S&P/Moody’s
|
Applicable
Percentage
|
Level 1
BBB-
and Baa3 above
|
0.200%
|
Level 2
BB+
and Ba1
|
0.250%
|
Level 3
BB
and Ba2
|
0.375%
|
Level 4
Lower
than Level 3
|
0.500%
|
“Appropriate Lender”
has the meaning specified in Section 2.15.
“Approved Fund” means
any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a
Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
“Assignment and
Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee, and accepted by the Agent, in substantially the form
of Exhibit C
hereto.
“Assuming Lender” has
the meaning specified in Section 2.21(d).
“Assumption Agreement”
has the meaning specified in Section 2.21(d).
“Available Amount” of
any Letter of Credit means, at any time, the maximum amount available to be
drawn under such Letter of Credit at such time (assuming compliance at such time
with all conditions to drawing).
“Bankruptcy Law” means
any proceeding of the type referred to in Section 6.01(e) of this Agreement
or Title 11, U.S. Code, or any similar foreign, federal or state law for
the relief of debtors.
“Base Rate” means a
fluctuating interest rate per annum in effect from time to time, which rate per
annum shall at all times be equal to the highest of:
(a) the rate
of interest announced publicly by Citibank in New York, New York, from
time to time, as Citibank’s base rate;
(b) ½ of one
percent per annum above the Federal Funds Rate; and
(c) the
British Bankers Association Interest Settlement Rate applicable to Dollars for a
period of one month (“One Month LIBOR”) plus 1.00% (for the avoidance of doubt,
the One Month LIBOR for any day shall be based on the rate appearing on Reuters
LIBOR01 Page (or other commercially available source providing such quotations
as designated by the Agent from time to time) at approximately 11:00 a.m. London
time on such day).
“Base Rate Advance”
means an Advance that bears interest as provided in
Section 2.07(a)(i).
“Borrower Information”
has the meaning specified in Section 9.08.
“Borrowing” means a
borrowing consisting of simultaneous Advances of the same Type made by each of
the Lenders pursuant to Section 2.01(a).
“Borrowing Base”
means, as to each Borrower (a) the sum of the Loan Values in respect of such
Borrower less (b) Reserves in respect of such Borrower; provided that the
aggregate Borrowing Base for both Borrowers shall not exceed $500,000,000 plus
the amount of the Reserves for the Secured Agreements (other than the Loan
Documents) at any time.
“Borrowing Base
Certificate” means a certificate in substantially the form of Exhibit E hereto
(with such changes therein as may be required by the Agent to reflect the
components of, and Reserves against, the Borrowing Base as provided for
hereunder from time to time), executed and certified as accurate and complete by
a Responsible Officer of the Company or by the controller of the Company, which
shall include detailed calculations as to the Borrowing Base as reasonably
requested by the Agent.
“Borrowing Base
Deficiency” means, at any time and as to each Borrower, the failure of
(a) the Borrowing Base of such Borrower at such time to equal or exceed
(b) the sum of (i) the aggregate principal amount of the Advances made
to such Borrower and outstanding at such time plus (ii) the aggregate
Available Amount under all Letters of Credit issued for the account of such
Borrower and outstanding at such time.
“Business Day” means a
day of the year on which banks are not required or authorized by law to close in
New York City and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
“Canadian Dollars”
means the lawful money of Canada.
“Canadian Guaranteed
Obligations” has the meaning specified in
Section 7.01(a)(ii).
“Canadian Loan Party”
means Kodak Canada and each Canadian Subsidiary Guarantor.
“Canadian Security
Agreement” means the Canadian Security Agreement delivered on the
Original Effective Date in accordance with Section 3.01(g)(iii), as amended
and restated as of the Amendment Effective Date.
“Canadian Subsidiary
Guarantor” means the wholly-owned (other than directors’ qualifying
shares or similar holdings under applicable law) Subsidiaries of Kodak Canada
listed on Part B of Schedule II hereto and each other Subsidiary of Kodak
Canada that shall be required to execute and deliver a guaranty pursuant to
Section 5.01(i).
“Cash Collateralize”
means, in respect of an obligation, provide and pledge (as a first priority
perfected security interest) cash collateral in Dollars, at a location and
pursuant to documentation in form and substance reasonably satisfactory to the
Agent (and “Cash
Collateralization” has a corresponding meaning).
“Cash Control Trigger
Event” means either (a) the occurrence and continuance of a Default
or (b) the failure of the Loan Parties to maintain Excess Availability of
at least $100,000,000 for three (3) consecutive Business
Days. For purposes of this Agreement, the occurrence of a Cash
Control Trigger Event shall be deemed to be continuing (a) until such
Default has been cured or waived and/or (b) if the Cash Control Trigger
Event arises under clause (b) above, until Excess Availability is
equal to or greater than $100,000,000 for thirty (30) consecutive days, at
which time a Cash Control Trigger Event shall no longer be deemed to be
occurring for purposes of this Agreement.
“Cash Equivalents”
means any of the following, to the extent owned by any Loan Party free and clear
of all Liens other than Liens created under the Collateral Documents and having
a maturity of not greater than 12 months from the date of issuance
thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States, (b) certificates of deposit of or time
deposits with any commercial bank that is a Lender or a member of the Federal
Reserve System that issues (or the parent of which issues) commercial paper
rated as described in clause (c), is organized under the laws of the United
States or any state thereof and has combined capital and surplus of at least
$500,000,000, (c) commercial paper in an aggregate amount of no more than
$10,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any state of the United States and rated at least
“Prime 1” (or the then equivalent grade) by Moody’s or “A 1” (or the
then
equivalent
grade) by S&P or (d) Investments, classified in accordance with GAAP,
as current assets of the Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of 1940, as
amended, which are administered by financial institutions that have the highest
rating obtainable from either Moody’s or S&P, or (e) offshore overnight
interest bearing deposits in foreign branches of Citibank, any Lender or an
Affiliate of a Lender.
“CFC” means an entity
that is a “controlled foreign corporation” of the Company under Section 957
of the Code or an entity all or substantially all of the assets of which are
CFCs, and any entity which would be a “controlled foreign corporation” except
for any alternate classification under Treasury Regulation 301.7701-3, or
any successor provisions to the foregoing.
“Citibank” means
Citibank, N.A.
“Code” means the
United States Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder.
“Collateral” means all
“Collateral” referred to in the Collateral Documents and all other property that
is or is intended to be subject to any Lien in favor of the Agent for the
benefit of the Secured Parties pursuant to the terms of the Collateral
Documents.
“Collateral Documents”
means the Security Agreement, the Canadian Security Agreement, the Mortgages and
each of the collateral documents, instruments and agreements delivered pursuant
to Section 5.01(i) or (j).
“Commitment” means a
Letter of Credit Commitment or a Revolving Credit Commitment.
“Comprehensive Guaranteed
Obligations” has the meaning specified in
Section 7.01(a)(i).
“Concentration
Account” means each deposit account, other than an Excluded Account,
maintained by a Loan Party in which funds of such Loan Party from one or more
Deposit Accounts are concentrated.
“Consolidated” refers
to the consolidation of accounts in accordance with GAAP.
“Consolidated
Subsidiary” means any Person whose accounts are consolidated with the
accounts of the Company in accordance with GAAP.
“Convert”, “Conversion” and
“Converted”
each refers to a conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.08 or 2.09.
“Convertible Notes”
means the Company’s 3.375% Senior Convertible Notes due 2033.
“Debt” of any Person
means, without duplication, (a) all indebtedness of such Person for
borrowed money (including, without limitation, pursuant to securitization
transactions), (b) to the extent such obligations would appear as a
liability of such Person in accordance with GAAP, all obligations of such Person
for the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person’s business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all obligations of such
Person as lessee under leases that have been or should be, in accordance with
GAAP, recorded as capital leases, (f) the face or maximum amount of all
obligations of such Person which have been or may be drawn upon under
acceptances, letters of credit or similar extensions of credit, (g) all
Hedge Agreement Obligations of such Person, (h) all payment obligations of
other Persons whose financial statements are not Consolidated with those of
such
Person
(collectively, “Guaranteed Debt”)
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement
(1) to pay or purchase such Guaranteed Debt or to advance or supply funds
for the payment or purchase of such Guaranteed Debt, (2) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell services,
expressly for the purpose of enabling the debtor to make payment of such
Guaranteed Debt or to assure the holder of such Guaranteed Debt against loss,
(3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether
such property is received or such services are rendered) or (4) otherwise
to assure a creditor of such other Person against loss, and (i) all Debt of
the type referred to in clauses (a) through (h) above secured by (or
for which the holder of such Debt has an existing right to be secured by) any
Lien on property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
“Debt for Borrowed
Money” of any Person means all items that, in accordance with GAAP, would
be classified as short term borrowings and long term debt on a Consolidated
statement of financial position of such Person.
“Default” means any
Event of Default or any event that would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
“Default Interest” has
the meaning specified in Section 2.07(b).
“Defaulted Advance”
means, with respect to any Lender at any time, the portion of any Advance
required to be made by such Lender to the Borrower pursuant to Section 2.01
or 2.02 at or prior to such time which has not been made by such Lender or by
the Agent for the account of such Lender pursuant to Section 2.02(d) as of
such time. In the event that a portion of a Defaulted Advance shall
be deemed made pursuant to Section 2.19(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Section 2.01 on the same date as the Defaulted Advance
so deemed made in part.
“Defaulted Amount”
means, with respect to any Lender at any time, any amount required to be paid by
such Lender to the Agent or any other Lender hereunder or under any other Loan
Document at or prior to such time which has not been so paid as of such time,
including, without limitation, any amount required to be paid by such Lender to
(a) any Issuing Bank pursuant to Section 2.03(b) to purchase a
participation in a Letter of Credit, (b) the Agent pursuant to
Section 2.02(d) to reimburse the Agent for the amount of any Advance made
by the Agent for the account of such Lender, (c) any other Lender pursuant
to Section 2.15 to purchase any participation in Advances owing to such
other Lender and (d) the Agent or any Issuing Bank pursuant to
Section 8.05 to reimburse the Agent or such Issuing Bank for such Lender’s
ratable share of any amount required to be paid by the Lenders to the Agent or
such Issuing Bank as provided therein. In the event that a portion of
a Defaulted Amount shall be deemed paid pursuant to Section 2.19(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan Document
on the same date as the Defaulted Amount so deemed paid in part.
“Defaulting Lender”
means, at any time, a Lender as to which the Agent has notified the Company that
(i) such Lender has failed for three or more Business Days to comply with its
obligations under this Agreement to make an Advance, make a payment to the
Issuing Bank in respect of an Issuance (each a “funding obligation”),
(ii) such Lender has notified the Agent, or has stated publicly, that it will
not comply with any such funding obligation hereunder, or has defaulted on its
funding obligations under any other loan agreement or credit agreement or other
similar/other financing agreement, (iii) such Lender has, for three or more
Business Days, failed to confirm in writing to the Agent, in response to a
written request of the Agent, that it will comply with its funding obligations
hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with
respect to such Lender. Any determination that a Lender is a
Defaulting Lender under clauses (i) through (iv) above will be made by the
Agent in its sole discretion acting in good faith. The Agent will
promptly send to all parties hereto a copy of any notice to the Company provided
for in this definition.
“Deposit Accounts”
means any checking or other demand deposit account maintained by a Loan
Party.
“Dilution” means, as
of any date, a percentage, based upon the experience of the twelve-month period
ending as of the last day of the immediately preceding fiscal month, which is
the result of dividing the Dollar amount of (i) bad debt write-downs, discounts,
advertising allowances, profit sharing deductions or other non-cash credits with
respect to a Loan Party’s Accounts during such period determined consistently
with the applicable Loan Party’s accounting practices, by (ii) such Loan Party’s
gross sales with respect to Accounts for such Loan Party during such
period.
“Dilution Reserve”
means, as of any date, an amount sufficient to reduce the advance rate against
Eligible Receivables by one percentage point for each percentage point by which
Dilution is in excess of 5.0%.
“Dollar” means the
lawful currency of the United States.
“Domestic Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Domestic Lending Office” opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Company and the Agent.
“EBITDA” means, for
any period, net earnings (or net loss) plus, without duplication and to the
extent reflected as a charge in the Consolidated statement of earnings, the sum
of (a) interest expense, (b) income tax expense (benefit),
(c) depreciation expense, (d) amortization expense, (e) any
extraordinary expenses or losses, (f) any other non-cash charges that will not
at any time result in any cash payment and (g) corporate cash restructuring
payments in an amount not to exceed, $143,000,000 during the fiscal year 2008,
$275,000,000 during the fiscal year 2009, and $40,000,000 during the fiscal year
2010, and minus, to the extent included in net earnings on the Consolidated
statement of earnings, (i) interest income, (ii) any extraordinary income or
gains and (iii) any other non-cash income that will not at any time result in
any cash payment, in each case determined in accordance with GAAP for such
period.
“Eligible Assignee”
means with respect to the Revolving Credit Facility (i) a Lender;
(ii) an Affiliate of a Lender; and (iii) any other Person approved by
(x) the Agent, (y) each Issuing Bank and (z) unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance
with Section 9.07, the Company, in each case, such approval not to be
unreasonably withheld or delayed; provided, however, that neither
any Loan Party nor an Affiliate of a Loan Party shall qualify as an Eligible
Assignee.
“Eligible Equipment”
means Equipment of the Company and its Subsidiaries subject to the Lien of the
Collateral Documents, the value of which shall be determined based upon its Net
Orderly Liquidation Value. Criteria and eligibility standards used in
determining Eligible Equipment may be fixed and revised from time to time by the
Agent in its reasonable discretion. Unless otherwise from time to
time approved in writing by the Agent, no Equipment shall be deemed Eligible
Equipment if, without duplication:
(a) any such
Equipment is located on leaseholds and is subject to landlord Liens or other
Liens arising by operation of law, unless one of the following applies: (i) the
lessor has entered into a Landlord Lien Waiver or (ii) a Rent Reserve has
been taken with respect to such Equipment or, in the case of any third
party premises, a Reserve has been taken by the Agent in the exercise of its
reasonable discretion; or
(b) such
Equipment is Equipment for which appraisals have not been completed by the Agent
or a qualified independent appraiser reasonably acceptable to the Agent
utilizing procedures and criteria reasonably acceptable to the Agent for
determining the value of such Equipment; or
(c) such
Equipment is Equipment in respect of which the Collateral Documents, after
giving effect to the related filings of financing statements that have then been
made, if any, do not or have ceased to create a valid and perfected first
priority lien or security interest in favor of the Agent, on behalf of the
Secured Parties, securing the Secured Obligations; or
(d) a Loan
Party does not have good, valid and unencumbered title thereto, subject only to
Liens permitted under clause (a) or (b) of the definition of Permitted
Liens or Liens granted pursuant to any of the Loan Documents (“Permitted Collateral
Liens”); or
(e) Equipment
that is subject to a voluntary or mandatory recall or is otherwise subject to
any similar action that renders it unsaleable.
“Eligible Inventory”
means, at the time of any determination thereof, without duplication, the
Inventory Value of the Loan Parties at such time that is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of
clauses (a) through (m) below. Criteria and eligibility
standards used in determining Eligible Inventory may be fixed and revised from
time to time by the Agent in its reasonable discretion. Unless
otherwise from time to time approved in writing by the Agent, no Inventory shall
be deemed Eligible Inventory if, without duplication:
(a) a Loan
Party does not have good, valid and unencumbered title thereto, subject only to
Permitted Collateral Liens; or
(b) it is not
located in the United States (in the case of the Company and the US Subsidiary
Guarantors) or Canada (in the case of Kodak Canada and the Canadian Subsidiary
Guarantors); provided that in the case of Inventory located in Canada, the
Company shall provide evidence reasonably satisfactory to the Agent that there
is an enforceable, perfected security interest in such Inventory in favor of the
Agent under the laws of the applicable foreign jurisdiction; or
(c) it is
either (i) a service part in the possession of or held by field engineers
or (ii) located at third party premises or (except in the case of consigned
Inventory, which is covered by clause (f) below) in another location not
owned by a Loan Party, and is subject to landlord Liens or other Liens arising
by operation of law, unless one of the following applies: (A) the premises
is covered by a Landlord Lien Waiver or (B) a Rent Reserve has been taken
with respect to such Inventory or, in the case of any third party premises, a
Reserve has been taken by the Agent in the exercise of its reasonable
discretion; or
(d) it is
operating supplies, labels, packaging or shipping materials, cartons, repair
parts, labels, miscellaneous spare parts and other such materials not held for
sale, in each case to the extent not considered used for sale in the ordinary
course of business of the Loan Parties by the Agent in its reasonable discretion
from time to time; or
(e) it is not
subject to a valid and perfected first priority Lien in favor of the Agent
subject only to Permitted Collateral Liens; or
(f) it is
consigned at a customer, supplier or contractor location but still accounted for
in the Loan Party’s inventory balance, unless (i) if such Inventory is subject
to landlord Liens or other Liens arising by operation of law, then such location
is the subject of a Landlord Lien Waiver, (ii) the Agent is reasonably satisfied
with the controls and reporting applicable to such Inventory and (iii) the
aggregate amount of such Inventory does not exceed $100,000 at any location at
any time; or
(g) it is Inventory that is in-transit to or from a location not leased or
owned by a Loan Party other than any such in-transit Inventory to a Loan Party
or between Loan Parties, that is physically in-transit within the United States
(in the case of the Company and the US Subsidiary Guarantors) or Canada (in the
case of Kodak Canada and the Canadian Subsidiary Guarantors) and as to which a
Reserve has been taken by the Agent if required in the exercise of its
reasonable discretion; or
(h) it is obsolete, slow-moving, nonconforming or unmerchantable or is
identified as a write-off, overstock or excess by a Loan Party (as determined in
accordance with the Company’s policies
which
shall be substantially consistent those in effect on the Amendment Effective
Date), or does not otherwise conform to the representations and warranties
contained in this Agreement and the other Loan Documents applicable to
Inventory; or
(i) it
is Inventory used as a sample or prototype, display or display item;
or
(j) any
Inventory that is damaged, defective or marked for return to vendor, has been
deemed by a Loan Party to require rework or is being held for quality control
purposes; or
(k) such
Inventory does not meet all material applicable standards imposed by any
governmental authority having regulatory authority over it; or
(l) any
Inventory for which field audits and appraisals have not been completed by the
Agent or a qualified independent appraiser reasonably acceptable to the Agent
utilizing procedures and criteria acceptable to the Agent for determining the
value of such Inventory; or
(m) Inventory
that is subject to a voluntary or mandatory recall or is otherwise subject to
any similar action that renders it unsaleable.
“Eligible Real
Property” means the real property listed on Schedule 1.01(a) (and other
real property reasonably acceptable to the Agent from time to time) owned in fee
(or, in the case of the IDA Properties, owned via a leasehold interest from a
local industrial development agency lessor) by any of the Company or any of the
US Subsidiary Guarantors as to which all Real Property Deliverables have been
delivered to the Agent. Criteria and eligibility standards used in
determining Eligible Real Property may be fixed and revised from time to time by
the Agent in its reasonable discretion.
“Eligible Receivables”
means, at the time of any determination thereof, each Account of each Loan Party
that satisfies the following criteria: such Account (i) has been
invoiced to, and represents the bona fide amounts due to a Loan Party from, the
purchaser of goods or services, in each case originated in the ordinary course
of business of such Loan Party and (ii) is not ineligible for inclusion in
the calculation of the Borrowing Base pursuant to any of clauses (a)
through (r) below. In determining the amount to be so included, the
face amount of an Account shall be reduced by, without duplication and to the
extent not included in Reserves, to the extent not reflected in such face
amount, (A) the amount of all accrued and actual discounts, claims, credits
or credits pending, promotional program allowances, price adjustments, finance
charges or other allowances (including any amount that a Loan Party may be
obligated to rebate to a customer pursuant to the terms of any written agreement
or understanding), (B) the aggregate amount of all limits and deductions
provided for in this definition and elsewhere in this Agreement, if any, and
(C) the aggregate amount of all cash received in respect of such Account
but not yet applied by a Loan Party to reduce the amount of such Account.
Criteria and eligibility standards used in determining Eligible Receivables may
be fixed and revised from time to time by the Agent in its reasonable
discretion. Unless otherwise approved from time to time in writing by
the Agent, no Account shall be an Eligible Receivable if, without
duplication:
(a) (i) a
Loan Party does not have sole lawful and absolute title to such Account (subject
only to Permitted Collateral Liens) or (ii) the goods sold with
respect to such Account have been sold under a purchase order or pursuant to the
terms of a contract or other written agreement or understanding that indicates
that any Person other than a Loan Party has or has purported to have an
ownership interest in such goods; or
(b) (i) it is
unpaid for more than 60 days from the original due date or (ii) it
arises as a result of a sale with original payment terms in excess of
90 days; or
(c) more than
50% in face amount of all Accounts of the same Account Debtor are ineligible
pursuant to clause (b) above; or
(d) the
Account Debtor is insolvent or the subject of any bankruptcy case or insolvency
proceeding of any kind (other than postpetition accounts payable of an Account
Debtor that is a debtor-in-possession under the Bankruptcy Law and reasonably
acceptable to the Agent); or
(e) (i) the
Account is not payable in Dollars or Canadian Dollars or other currency as to
which a Reserve has been taken by the Agent in the exercise of its reasonable
discretion or (ii) the Account Debtor is either not organized under the
laws of the United States of America, any state thereof, or the District of
Columbia, or Canada or any province thereof or is located outside or has its
principal place of business or substantially all of its assets outside the
United States or Canada, unless such Account is supported by a letter of credit
from an institution and in form and substance satisfactory to the Agent in its
sole discretion; or
(f) the
Account Debtor is the United States of America or any department, agency or
instrumentality thereof, unless the relevant Loan Party duly assigns its rights
to payment of such Account to the Agent pursuant to the Assignment of Claims Act
of 1940, as amended, which assignment and related documents and filings shall be
in form and substance reasonably satisfactory to the Agent; or
(g) to the
extent of any security deposit, progress payment, retainage or other similar
advance made by or for the benefit of the applicable Account Debtor, that
portion of the Account as to which the applicable Loan Party has received any
security deposit (to the extent received from the applicable Account Debtor),
progress payment, retainage or other similar advance made by or for the benefit
of the applicable Account Debtor; or
(h) (i) it
is not subject to a valid and perfected first priority Lien in favor of the
Agent, subject to no other Liens other than Permitted Collateral Liens or
(ii) it does not otherwise conform in all material respects to the
representations and warranties contained in this Agreement and the other Loan
Documents relating to Accounts; or
(i) (i) such
Account was invoiced in advance of goods being shipped or services being
provided, (ii) such Account was invoiced twice or more, or (iii) the
associated revenue has not been earned; or
(j) the sale
to the Account Debtor is on a bill-and-hold, guaranteed sale, sale-and-return,
ship-and-return, sale on approval or consignment or other similar basis or made
pursuant to any other agreement providing for repurchases or return of any
merchandise which has been claimed to be defective or otherwise unsatisfactory,
which shall not include customary product warranties; or
(k) the goods
giving rise to such Account have not been shipped and/or title has not been
transferred to the Account Debtor, or the Account represents a progress-billing
or otherwise does not represent a complete sale; for purposes hereof,
“progress-billing” means any invoice for goods sold or leased or services
rendered under a contract or agreement pursuant to which the Account
Debtor’s obligation to pay such invoice is conditioned upon the completion by a
Loan Party of any further performance under the contract or agreement;
or
(l) it arises
out of a sale made by a Loan Party to an employee, officer, agent, director,
Subsidiary or Affiliate of a Loan Party; or
(m) such
Account was not paid in full, and a Loan Party created a new receivable for the
unpaid portion of the Account without the agreement of the Account Debtor, and
other Accounts constituting chargebacks, debit memos and other adjustments for
unauthorized deductions or put back on the aging until resolved by the credit
department of the Company; or
(n) (A) the
Account Debtor (i) has or has asserted a right of set-off, offset,
deduction, defense, dispute, or counterclaim against a Loan Party (unless such
Account Debtor has entered into a written agreement reasonably satisfactory to
the Agent to waive such set-off, offset, deduction, defense, dispute, or
counterclaim rights), (ii) has disputed its liability (whether by
chargeback or otherwise) or made any claim with respect to the Account or any
other Account of a Loan Party which has not been resolved, in
each case
of clause (i) and (ii), without duplication, only to the extent of the
amount of such actual or asserted right of set-off, or the amount of such
dispute or claim, as the case may be or (iii) is also a creditor or
supplier of the Loan Party (but only to the extent of such Loan Party’s
obligations to such Account Debtor from time to time) or (B) the Account is
contingent in any respect or for any reason; or
(o) the
Account does not comply in all material respects with the requirements of all
applicable laws and regulations, whether Federal, state, provincial or local,
including without limitation, the Federal Consumer Credit Protection Act,
Federal Truth in Lending Act and Regulation Z; or
(p) as to any
Account, to the extent that (i) a check, promissory note, draft, trade
acceptance or other instrument for the payment of money has been received,
presented for payment and returned uncollected for any reason or (ii) such
Account is otherwise classified as a note receivable and the obligation with
respect thereto is evidenced by a promissory note or other debt instrument or
agreement; or
(q) the
Account is created in cash on delivery terms; or
(r) the
amount of any net credit balances relating to such Account is unused by the
Account Debtor within 60 days from the date the net credit balance was
created.
Notwithstanding
the foregoing, all Accounts of any single Account Debtor and its Affiliates
which, in the aggregate, exceed (i) in respect of any Account Debtor whose
Public Debt Rating is not less than BBB- by S&P and Baa3 by Moody’s, 20% of
all Eligible Receivables and (ii) in respect of any other Account Debt, 10%
of all Eligible Receivables shall not be Eligible Receivables.
“Enabling Amendment”
means that certain Amendment No. 1 to the Existing Credit Agreement, dated as of
March 27, 2009, by and among the Lenders party thereto, the Agent and the
Borrowers.
“Environmental Action”
means any action, suit, demand, demand letter, claim, notice of non-compliance
or violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other actions
or damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
“Environmental Law”
means any federal, state, local or foreign statute, law, ordinance, rule,
regulation, code, order, judgment, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
“Environmental Permit”
means any permit, approval, identification number, license or other
authorization required under any Environmental Law.
“Equipment” has the
meaning specified in the UCC.
“ERISA” means the
United States Employee Retirement Income Security Act of 1974, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder.
“ERISA Affiliate”
means any Person that for purposes of Title IV of ERISA is a member of the
controlled group of any Loan Party, or under common control with any Loan Party,
within the meaning of Section 414 of the Code.
“ERISA Event” means
(a)(i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC or (ii) the
requirements of Section 4043(b) of ERISA apply with
respect
to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the administrator of
any Plan of a notice of intent to terminate such Plan, pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien
under Section 303(k) of ERISA shall have been met with respect to any Plan;
(g) a determination that any Plan is in “at risk” status (within the meaning of
Section 303 of ERISA); or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to administer,
such Plan.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
“Eurodollar Lending
Office” means, with respect to any Lender, the office of such Lender
specified as its “Eurodollar Lending Office” opposite its name on
Schedule I hereto or in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Company and the
Agent.
“Eurodollar Rate”
means, for any Interest Period for each Eurodollar Rate Advance comprising part
of the same Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Reuters Screen LIBOR01 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period or, if for
any reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars are offered by the
principal office of each of the Reference Banks (or their respective Affiliates)
in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank’s (or
their respective Affiliates’) Eurodollar Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. If the
Reuters Screen LIBOR01 (or any successor page) is unavailable, the Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
“Eurodollar Rate
Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).
“Eurodollar Rate Reserve
Percentage” for any Interest Period for all Eurodollar Rate Advances
comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
“Events of Default”
has the meaning specified in Section 6.01.
“Excess Availability”
means, as of any date, (1) the Revolving Credit Availability Amount minus (2)
the sum of the aggregate principal amount of all Advances and the aggregate
Available Amount of all Letters of Credit outstanding on such date.
“Excluded Account”
means (i) any deposit or concentration accounts funded in the ordinary
course of business, the deposits in which shall not aggregate more than
$5,000,000 or exceed $1,000,000 with respect to any one account (or in each
case, such greater amounts to which the Agent may reasonably agree),
(ii) any payroll, trust and tax withholding accounts funded in the ordinary
course of business or required by applicable law or (iii) so long as the
aggregate amounts on deposit in all such accounts does not exceed $10,000,000 at
any time, any deposit account reasonably required for servicing the Borrowers’
Event Imaging Services business.
“Existing Accounts”
means the cash concentration accounts and other Deposit Accounts of the Loan
Parties set forth on Schedule III.
“Existing Credit
Agreement” means the credit agreement, dated as of October 18, 2005,
by and among the Borrowers, the Agent, the Lenders party thereto and the Issuing
Bank.
“Extending Lender”
means each Lender that, as of the Amendment Effective Date or in accordance with
Section 2.21, has agreed to extend its Commitment to the Extension Termination
Date.
“Extension Termination
Date” means, as it applies to Extending Lenders and the Revolving Credit
Facility-B, the earlier of (a) the third anniversary of the Amendment Effective
Date and (b) the date of termination in whole of the Revolving Credit
Commitments pursuant to Section 2.05, 6.01 or 9.14(b).
“Facility” means, the
Revolving Credit Facility and the Letter of Credit Facility.
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it.
“Fixed Charge Coverage
Ratio” means, as determined on the last day of any fiscal quarter, the
ratio of (i) Consolidated EBITDA for the most recently completed period of four
consecutive fiscal quarters minus the aggregate amount of any unfinanced capital
expenditures paid for such period to (ii) interest payable on, and amortization
of debt discount in respect of, all Debt for Borrowed Money during such period
plus the aggregate amount of all scheduled principal payments (excluding the
aggregate amount of any payments made with respect to the Convertible Notes)
plus the aggregate amount of all cash dividend payments to holders of the
capital stock of the Company, in each case, of the Company and its Consolidated
Subsidiaries on a Consolidated basis.
“Fixed Charge Coverage Ratio
Trigger Event” means the failure of the Loan Parties to maintain Excess
Availability in an amount greater than or equal to $100,000,000 for
three (3) consecutive Business Days. For purposes of this
Agreement, the occurrence of a Fixed Charge Coverage Ratio Trigger Event shall
be deemed continuing until Excess Availability is greater than or equal to
$100,000,000 for thirty (30) consecutive days, at which time a Fixed Charge
Coverage Ratio Trigger Event shall no longer be deemed to be continuing for
purposes of this Agreement.
“Fund” means any
Person (other than an individual) that is or will be engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course.
“GAAP” has the meaning
specified in Section 1.03.
“Guaranteed
Obligations” means the Comprehensive Guaranteed Obligations or the
Canadian Guaranteed Obligations.
“Guarantors” means the
Company, the US Subsidiary Guarantors and the Canadian Subsidiary
Guarantors.
“Guaranty” means the
guaranty of each Guarantor set forth in Article VII.
“Guaranty Supplement”
has the meaning specified in Section 7.05.
“Hazardous Materials”
means (a) petroleum and petroleum products, byproducts or breakdown products,
radioactive materials, asbestos-containing materials, polychlorinated biphenyls
and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant
under any Environmental Law.
“Hedge Agreement
Obligations” means the aggregate net liabilities, on a mark-to-market
basis as determined in accordance with GAAP, for all Hedge Agreements of a
Person calculated as of the end of the most recent month.
“Hedge Agreements”
means interest rate, currency or commodity swap, cap or collar agreements,
interest rate, currency or commodity future or option contracts and other
similar agreements.
“IDA Properties” means
the real property marked with an asterisk on Schedule 1.01(a).
“Indenture” means the
Indenture dated as of January 1, 1988 between the Company and The Bank of
New York, as trustee, as amended from time to time.
“Initial Termination
Date” means the earlier of (a) October 18, 2010 and (b) the date of
termination in whole of the Revolving Credit Commitments pursuant to
Section 2.05, 6.01 or 9.14(b).
“Insufficiency” means,
with respect to any Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA.
“Intellectual
Property” has the meaning specified in Section 4.01(i).
“Interest Period”
means, for each Eurodollar Rate Advance comprising part of the same Borrowing,
the period commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by the applicable Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, and subject to clause (c) of this
definition, nine or twelve months, as the applicable Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest Period,
select; provided, however,
that:
(a) no
Borrower may select any Interest Period that ends after the Extension
Termination Date;
(b) Interest
Periods commencing on the same date for Eurodollar Rate Advances comprising part
of the same Borrowing shall be of the same duration;
(c) no
Borrower shall be entitled to select an Interest Period having duration of nine
or twelve months unless, by 2:00 P.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, each Lender notifies the
Agent that such Lender will be providing funding for such Borrowing with such
Interest Period (the failure of any Lender to so respond by such time being
deemed for all purposes of this Agreement as an objection by such Lender to the
requested duration of such Interest Period); provided that, if any
or all of the Lenders object to the requested duration of such Interest Period,
the duration of the Interest Period for such Borrowing shall be one, two, three
or six months, as specified by such Borrower in the applicable Notice of
Borrowing as the desired alternative to an Interest Period of nine or twelve
months;
(d) whenever
the last day of any Interest Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(e) whenever
the first day of any Interest Period occurs on a day of an initial calendar
month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
“Inventory” has the
meaning specified in the UCC.
“Inventory Value”
means with respect to any Inventory of a Loan Party at the time of any
determination thereof, the standard cost determined on a first in first out
basis and carried on the general ledger or inventory system of such Loan Party
stated on a basis consistent with its current and historical accounting
practices, in Dollars, determined in accordance with the standard cost method of
accounting less, without duplication, (i) any markup on Inventory from an
Affiliate and (ii) in the event variances under the standard cost method
are expensed, a Reserve reasonably determined by the Agent as appropriate in
order to adjust the standard cost of Eligible Inventory to approximate actual
cost.
“Investment” in any
Person means any loan or advance to such Person, any purchase or other
acquisition of any equity interests or Debt or the assets comprising a division
or business unit or a substantial part or all of the business of such Person,
any capital contribution to such Person or any other direct or indirect
investment in such Person, including, without limitation, any acquisition by way
of a merger or consolidation (or similar transaction) and any arrangement
pursuant to which the investor incurs Debt of the types referred to in
clause (h) or (i) of the definition of “Debt” in respect of
such Person.
“Issuance” with
respect to any Letter of Credit means the issuance, amendment, renewal or
extension of such Letter of Credit.
“Issuing Bank” means
an Initial Issuing Bank, any Eligible Assignee to which a portion of the Letter
of Credit Commitment hereunder has been assigned pursuant to Section 9.07
or any other Lender so long as such Eligible Assignee or Lender expressly agrees
to perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as an Issuing Bank
and notifies the Agent of its Applicable Lending Office (which information shall
be recorded by the Agent in the Register), for so long as such Initial Issuing
Bank, Eligible Assignee or Lender, as the case may be, shall have a Letter of
Credit Commitment.
“Landlord Lien Waiver”
means a written agreement that is reasonably acceptable to the Agent, pursuant
to which a Person shall waive or subordinate its rights (if any, that are or
would be prior to the Liens granted to the Agent for the benefit of the Lenders
under the Loan Documents) and claims as
landlord
in any Inventory or Equipment of a Loan Party for unpaid rents, grant access to
the Agent for the repossession and sale of such Inventory or Equipment and make
other agreements relative thereto.
“L/C Cash Deposit
Account” means an interest bearing cash deposit account to be established
and maintained by the Agent, over which the Agent, as provided in
Section 6.02, shall have sole dominion and control, upon terms as may be
satisfactory to the Agent.
“L/C Related
Documents” has the meaning specified in
Section 2.06(b)(i).
“Leasehold
Deliverables” means, with respect to each parcel of the IDA Properties,
estoppel and consent agreements, in form and substance reasonably satisfactory
to the Agent, executed by the lessor of the applicable IDA Property, along with
(x) a memorandum of lease in recordable form with respect to such leasehold
interest, executed and acknowledged by the owner of the affected real property,
as lessor, or (y) evidence that the applicable lease with respect to such
leasehold interest or a memorandum thereof has been recorded in all places
necessary or desirable, in the Agent’s reasonable judgment, to give constructive
notice to third-party purchasers of such leasehold interest and otherwise in
form satisfactory to the Agent.
“Lender Insolvency
Event” means that (i) a Lender or its Parent Company is insolvent, or is
generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for
the benefit of its creditors, or (ii) such Lender or its Parent Company is the
subject of a bankruptcy, insolvency, reorganization, liquidation or similar
proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or
the like has been appointed for such Lender or its Parent Company, or such
Lender or its Parent Company has taken any action in furtherance of or
indicating its consent to or acquiescence in any such proceeding or
appointment.
“Lenders” means each
Extending Lender, each Non-Extending Lender, each Assuming Lender that shall
become a party hereto pursuant to Section 2.21, each Issuing Bank and each
Person that shall become a party hereto pursuant to
Section 9.07.
“Letter of Credit” has
the meaning specified in Section 2.01(b).
“Letter of Credit
Agreement” has the meaning specified in
Section 2.03(a).
“Letter of Credit
Commitment” means, with respect to each Issuing Bank, the obligation of
such Issuing Bank to issue Letters of Credit for the account of the Company and
its specified Subsidiaries in (a) the amount set forth opposite the Issuing
Bank’s name on Schedule I hereto under the caption “Letter of Credit
Commitment” or (b) if such Issuing Bank has entered into one or more
Assignment and Acceptances or is a Lender that has become an Issuing Bank after
the Amendment Effective Date in accordance with the definition of “Issuing
Bank”, the amount set forth for such Issuing Bank in the Register maintained by
the Agent pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of
Credit Commitment”, in each case as such amount may be reduced prior to such
time pursuant to Section 2.05.
“Letter of Credit
Facility” means, at any time, an amount equal to the least of
(a) the aggregate amount of the Issuing Banks’ Letter of Credit Commitments
at such time, (b) $250,000,000 and (c) the aggregate amount of the
Revolving Credit Commitments, as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
“Lien” means any lien,
security interest or other charge or encumbrance of any kind on the property of
a Person, including, without limitation, the lien or retained security title of
a conditional vendor and any easement, right of way or other encumbrance on
title to real property, provided the term “Lien” shall not include any license
of intellectual property.
“Loan Documents” means
(i) this Agreement, (ii) the Notes, (iii) Collateral Documents
and (iv) each Letter of Credit Agreement, in each case as amended from time
to time.
“Loan Parties” means
the Borrowers and the Guarantors.
“Loan Value” means,
(a) with respect to Eligible Receivables, up to 85% of the value of
Eligible Receivables less the applicable Dilution Reserve plus (b) with
respect to Eligible Inventory, the lesser of (i) 65% of the cost of
domestic Eligible Inventory and (ii) 85% of the Net Orderly Liquidation
Value of Eligible Inventory (based on the then most recent independent inventory
appraisal) on any date of determination plus (c) (x) 50% of
the fair market value of Eligible Real Property and (y) 75% of the Net Orderly
Liquidation Value of Eligible Equipment, provided that the sum
of the values included in clauses (x) and (y) of this clause (c) shall
not exceed the lower of (A) 20% of the Revolving Credit Availability Amount
and (B) the maximum amount that, if secured, would not require security to be
granted under the Indenture.
“Material Adverse
Change” means any material adverse change in the business, condition
(financial or otherwise), operations, performance or properties of the Company
and its Consolidated Subsidiaries taken as a whole.
“Material Adverse
Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance or properties of the
Company and its Consolidated Subsidiaries taken as a whole, (b) the rights
and remedies of the Agent or any Lender under any Loan Document or (c) the
ability of any Significant Loan Party to perform its obligations under any Loan
Document to which it is a party.
“Material Subsidiary”
means (a) with respect to the Company, each direct Subsidiary of the Company
that, for the most recently completed fiscal year of the Company for which
audited financial statements are available, either (i) has, together with
its Subsidiaries, assets that exceed 5% of the total assets shown on the
Consolidated statement of financial condition of the Company as of the last day
of such period or (ii) has, together with its Subsidiaries, net sales that
exceed 5% of the Consolidated net sales of the Company for such period; and (b)
with respect to Kodak Canada, means any direct Subsidiary of Kodak Canada that,
as of the end of the most recently completed fiscal year for which audited
financial statements of the Company are available, either (y) has, together with
its Subsidiaries, assets that exceed 5% of the total assets shown on
consolidating statements of Kodak Canada and its Subsidiaries used in
preparation of the Company’s Consolidated statement of financial condition as of
the last day of such period or (z) has, together with its Subsidiaries, net
sales that exceed 5% of the Consolidated net sales of Kodak Canada and its
subsidiaries for such period.
“Moody’s” means
Moody’s Investors Service, Inc.
“Mortgages” means
deeds of trust, trust deeds, mortgages and deeds to secure Debt, delivered as in
accordance with Section 5.01(n).
“Multiemployer Plan”
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which any Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan years made
or accrued an obligation to make contributions.
“Multiple Employer
Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the Loan
Parties and the ERISA Affiliates or (b) was so maintained and in respect of
which any Loan Party or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
“Net Cash Proceeds”
means, with respect to any sale, lease, transfer or other disposition by the
Company or any of its Subsidiaries of any asset to a Person that is not an
Affiliate of the Company, the aggregate amount of cash actually received from
time to time (whether as initial consideration or through payment or disposition
of deferred consideration, and if received in a currency other than Dollars,
determined after the conversion of such cash into Dollars using the prevailing
exchange rate in effect on the
date such
local currency cash is received) by or on behalf of such Person in connection
with such transaction after deducting therefrom only (without duplication)
(a) reasonable and customary brokerage commissions, underwriting fees and
discounts, legal and accounting fees, filing fees, finder’s fees and other
similar fees and commissions and other expenses of the transaction, (b) the
amount of taxes payable in connection with or as a result of such transaction or
(c) the amount of any Debt secured by a Lien on such asset that, by the terms of
the agreement or instrument governing such Debt, is required to be repaid upon
such disposition, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash (or, in the case of
taxes, within 12 months of the time of receipt of such cash), actually paid to a
Person that is not an Affiliate of the Borrower and are properly attributable to
such transaction or to the asset that is the subject thereof, provided, however, that Net Cash Proceeds
shall not include any license by the Company or its Subsidiaries of its
Intellectual Property in the ordinary course of business, any settlement by the
Company or its Affiliates with respect to claims relating to Intellectual
Property rights or any proceeds from the sale or transfer of the Intellectual
Property listed on Part A of Schedule X of the Security
Agreement.
“Net Orderly Liquidation
Value” means, with respect to Eligible Equipment and Eligible Inventory,
as the case may be, the orderly liquidation value with respect to such Equipment
or Inventory, net of expenses estimated to be incurred in connection with such
liquidation, based on the most recent third party appraisal in form and
substance, and by an independent appraisal firm, reasonably satisfactory to the
Agent.
“Non-Defaulting
Lender” means, at any time, a Lender that is not a Defaulting Lender or a
Potential Defaulting Lender.
“Non-Extending Lender”
means each Lender that is not an Extending Lender.
“Non-Revolving
Obligations” means Obligations in respect of the Letters of Credit listed
on Schedule 1.01(b) hereto.
“Note” means a
promissory note of the Company payable to the order of any Lender, delivered
pursuant to a request made under Section 2.16 in substantially the form of
Exhibit A
hereto, evidencing the aggregate indebtedness of the Company to such Lender
resulting from the Advances made by such Lender.
“Notice of Borrowing”
has the meaning specified in Section 2.02(a).
“Notice of Issuance”
has the meaning specified in Section 2.03(a).
“Obligations” means
all liabilities and obligations of every nature of each Loan Party and its
Subsidiaries from time to time owed to the Agents, the Lenders or any of them,
under any Loan Document, whether for principal, interest (including interest
which, but for the filing of a petition in bankruptcy with respect to such Loan
Party, would have accrued on any Obligation, whether or not a claim is allowed
against such Loan Party for such interest in the related bankruptcy proceeding),
fees, expenses, indemnification or otherwise and whether primary, secondary,
direct, indirect, contingent, fixed or otherwise.
“Original Effective
Date” has the meaning specified in Section 3.01.
“Other Taxes” has the
meaning specified in Section 2.14(b).
“Parent Company”
means, with respect to a Lender, the bank holding company (as defined in Federal
Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of
such Lender.
“PATRIOT Act” means
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law
October 26, 2001.
“PBGC” means the
Pension Benefit Guaranty Corporation (or any successor).
“Permitted Collateral
Liens” has the meaning specified in the definition of “Eligible
Inventory”.
“Permitted Liens”
means such of the following as to which no enforcement, collection, execution,
levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under the proviso of
Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other
similar Liens arising in the ordinary course of business; (c) pledges or
deposits to secure obligations under workers’ compensation laws or similar
legislation or to secure public or statutory obligations; (d) easements,
rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable, were not incurred
in connection with and do not secure Debt and do not materially adversely affect
the use of such property for its present purposes; and (e) Liens or other
conveyances of property in favor of any governmental department, agency or
instrumentality to secure partial, progress or advance or other payments (other
than in respect of borrowed money) pursuant to any contract or
statute.
“Person” means an
individual, partnership, corporation (including a business trust), joint stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or agency
thereof.
“Plan” means a Single
Employer Plan or a Multiple Employer Plan.
“Potential Defaulting
Lender” means, at any time, a Lender (i) as to which the Agent has
notified the Company that an event of the kind referred to in the definition of
“Lender Insolvency Event” has occurred and is continuing in respect of any
financial institution affiliate of such Lender, (ii) as to which the Agent or
the Issuing Bank has in good faith reasonably determined and notified the
Company that such Lender or its Parent Company or a financial institution
affiliate thereof has notified the Agent, or has stated publicly, that it will
not comply with its funding obligations under any other loan agreement or credit
agreement or other similar/other financing agreement or (iii) that has, or whose
Parent Company has, a rating for any class of its long-term senior unsecured
debt lower than BBB- by S&P and Baa3 by Moody’s. Any
determination that a Lender is a Potential Defaulting Lender under any of
clauses (i) through (iii) above will be made by the Agent or, in the case
of clause (ii), the Issuing Bank, as the case may be, in its sole
discretion acting in good faith and upon consultation with the
Company. The Agent will promptly send to all parties hereto a copy of
any notice to the Company provided for in this definition.
“Projections” has the
meaning specified in Section 5.01(h)(viii).
“Public Debt Rating”
means, as of any date, the rating that has been most recently announced by
either S&P or Moody’s, as the case may be, for any class of long-term senior
secured debt issued by the Company or, if any such rating agency shall have
issued more than one such rating, the lowest such rating issued by such rating
agency. For purposes of the foregoing, (a) if only one of
S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable
Margin in respect of the Revolving Credit Facility-A and the Applicable
Percentage shall be determined by reference to the available rating; (b) if
neither S&P nor Moody’s shall have in effect a Public Debt Rating, the
Applicable Margin in respect of the Revolving Credit Facility-A and the
Applicable Percentage will be set in accordance with Level 4 under the
definition of “Applicable Margin” or
“Applicable
Percentage”, as the case may be; (c) if the ratings established by
S&P and Moody’s shall fall within different levels, the Applicable Margin in
respect of the Revolving Credit Facility-A and the Applicable Percentage shall
be based upon the lower rating; (d) if any rating established by S&P or
Moody’s shall be changed, such change shall be effective as of the date on which
such change is first announced publicly by the rating agency making such change;
and (e) if S&P or Moody’s shall change the basis on which ratings are
established, each reference to the Public Debt Rating
announced
by S&P or Moody’s, as the case may be, shall refer to the then equivalent
rating by S&P or Moody’s, as the case may be.
“Ratable Share” of any
amount means, with respect to any Lender at any time, the product of such amount
times a
fraction the numerator of which is the amount of such Lender’s Revolving Credit
Commitment at such time (or, if the Revolving Credit Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender’s Revolving Credit
Commitment as in effect immediately prior to such termination) and the
denominator of which is the aggregate amount of all Revolving Credit Commitments
at such time (or, if the Revolving Credit Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, the aggregate amount of all Revolving
Credit Commitments as in effect immediately prior to such
termination).
“Real Property
Deliverables” means, with respect to each parcel of real property,
Mortgages in substantially the form of Exhibit F hereto
(with such changes as may be reasonably satisfactory to the Agent and its
counsel to account for local law matters or local customs) and otherwise in form
and substance satisfactory to the Agent together with the
following: (i) evidence that counterparts of the Mortgages
have been duly executed, acknowledged and delivered by the Company or US
Subsidiary Guarantor (as well as the applicable industrial development authority
lessor for all IDA Properties; provided, however, that if,
after using commercially reasonable efforts, the Company or US Subsidiary
Guarantor is unable to secure the participation of the applicable industrial
development agency lessor as a mortgagor or grantor, then in lieu thereof, the
Company or US Subsidiary may deliver the Leasehold Deliverables together with a
Mortgage of the IDA Properties executed solely by the Company or US Subsidiary
Guarantor) and are in form suitable for filing or recording in all filing or
recording offices that the Agent may deem necessary or desirable in order to
create a valid first and subsisting Lien (subject to Permitted Liens) on the
property described therein and that all filing and recording taxes and fees have
been or, contemporaneous with the recording of such Mortgage, will be, paid;
(ii) fully paid American Land Title Association Lender’s Extended Coverage title
insurance policies (the “Mortgage Policies”)
in form and substance, with endorsements (not to include zoning endorsements)
and in amount reasonably acceptable to the Agent, issued, coinsured and
reinsured by title insurers acceptable to the Agent, insuring the Mortgages to
be valid first and subsisting Liens on the real property described therein, free
and clear of all defects (including, but not limited to, mechanics’ and
materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and
providing for such other affirmative insurance (including endorsements for
future Advances under the Loan Documents and for mechanics’ and materialmen’s
Liens) and such coinsurance and direct access reinsurance as the Agent may
reasonably deem necessary or desirable, and to the extent available using
commercially reasonable efforts, a zoning compliance letter or similar document
as may be available in accordance with local practice or custom from the
applicable municipality; (iii) American Land Title Association/American Congress
on Surveying and Mapping form surveys, for which all necessary fees (where
applicable) have been paid, and dated a recent date reasonably acceptable to the
Agent and certified to the Agent and the issuer of the Mortgage Policies and
otherwise in a manner reasonably satisfactory to the Agent by a land surveyor
duly registered and licensed in the jurisdictions in which the real property
described in such surveys is located and reasonably acceptable to the Agent,
showing all buildings and other improvements, any off site improvements, the
location of any easements, parking spaces, rights of way, building set back
lines and other dimensional regulations and the absence of encroachments, either
by such improvements or on to such property, and other defects, other than
Permitted Encumbrances (as defined in the Mortgage) and other defects reasonably
acceptable to the Agent; provided, however, that with
respect to any property, the Agent may accept, in its reasonable discretion, a
survey as described above with only optional Table A item #15 (i.e., aerial
photographs and/or boundary surveys) reasonably acceptable to the Agent and
otherwise sufficient to allow the title insurer to issue a survey endorsement;
(iv) an appraisal complying with the requirements of the Federal Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, which
appraisals shall be from a Person acceptable to the Agent and otherwise in form
and substance satisfactory to the Agent; (v) without duplication of the opinions
of counsel provided pursuant to Schedule 1.01(a) hereto, (A) favorable
opinions of local counsel for the Loan Parties in states in which the Eligible
Real Property is located, with respect to the enforceability and perfection of
the Mortgage and any related fixture filings, (B) a favorable opinion from
general counsel or local counsel for the Loan Parties with respect to the valid
existence, corporate power and authority of such Loan Parties in the granting of
the Mortgage and (C) for any IDA Property, a
favorable
opinion from counsel to the industrial development agency with respect to the
formalities in granting the Mortgage and the enforceability of the Mortgage, in
each case, in form and substance reasonably satisfactory to the Agent; (vi)
evidence in the form of customary insurance certificates of the insurance
required by the terms of the Mortgage; and (vii) such other consents, agreements
and confirmations of third parties as the Agent may reasonably deem necessary or
desirable, to the extent customary in the jurisdictions where such real property
is located, but provided that in no event will Agent require estoppel
certificates from tenants in the real property unless such tenants occupy
greater than 10 percent of the usable area of such property, and evidence that
all other actions that the Agent may reasonably deem necessary or desirable, to
the extent customary in the jurisdictions where such real property is located,
in order to create valid first and subsisting Liens on the property described in
the Mortgages has been taken.
“Reference Banks”
means Citibank, Bank of America, N.A, Lloyds TSB Bank PLC and
Credit Suisse, Cayman Islands Branch.
“Register” has the
meaning specified in Section 9.07(d).
“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.
“Rent Reserve” means,
with respect to any plant, warehouse, distribution center or other operating
facility where any Eligible Inventory or Eligible Equipment subject to
landlords’ Liens or other Liens arising by operation of law is located, and with
respect to which no Landlord Lien Waiver has been delivered to Agent, a reserve
equal to three month’s rent at such plant, warehouse, distribution center, or
other operating facility, and such other reserve amounts that may be determined
by the Agent in its reasonable discretion.
“Replacement Lender”
has the meaning specified in Section 2.20.
“Required Lenders”
means at any time Lenders owed at least a majority in interest of the sum of (a)
the then aggregate unpaid principal amount of the Advances outstanding at such
time and (b) the Unused Revolving Credit Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded from
the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time and (B) the Unused Revolving Credit
Commitment of such Lender at such time.
“Reserves” means, at
any time of determination and without duplication, (a) a reserve for
Secured Agreements, (b) Rent Reserves and (c) such other reserves as determined
from time to time in the reasonable discretion of the Agent to preserve and
protect the value of the Collateral; provided that, for
the first 90 days following the Amendment Effective Date (or such later date as
may be agreed by the Agent in its sole discretion), the Rent Reserve shall not
apply with respect to any real property as to which the Company is using its
commercially reasonable efforts to obtain a Landlord Lien Waiver.
“Responsible Officer”
means the chief executive officer, president, chief financial officer,
secretary, treasurer or controller of a Loan Party. Any document
delivered hereunder or under any other Loan Document that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“Revolving Credit
Availability Amount” means, the lesser of (i) the Borrowing Base in
respect of a Borrower and (ii) the Revolving Credit Commitments at such
time.
“Revolving Credit
Commitment” means as to any Lender (a) the amount set forth opposite
such Lender’s name on Schedule I hereto as such Lender’s “Revolving Credit
Commitment”, which shall be
designated
as a Commitment under the Revolving Credit Facility-A or the Revolving Credit
Facility-B, (b) that is an Assuming Lender, the amount set forth in the
applicable Assumption Agreement or (c) if such Lender has entered into an
Assignment and Acceptance, the amount set forth for such Lender in the Register
maintained by the Agent pursuant to Section 9.07(d), as such amount may be
reduced pursuant to Section 2.05 or increased pursuant to Section
2.21.
“Revolving Credit
Facility” means, the Revolving Credit Facility-A and the Revolving Credit
Facility-B.
“Revolving Credit
Facility-A” means, at any time, the aggregate amount of the Non-Extending
Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit
Facility-B” means, at any time, the aggregate amount of the Extending
Lenders’ Revolving Credit Commitments at such time.
“S&P” means
Standard & Poor’s, a division of The McGraw-Hill Companies,
Inc.
“Secured Agreement”
has the meaning specified in the Security Agreement.
“Secured Parties” has
the meaning specified in the Security Agreement.
“Secured Obligations”
has the meaning specified in the Security Agreement.
“Security Agreement”
means the Security Agreement delivered on the Original Effective Date in
accordance with Section 3.01(g)(ii), as amended and restated as of the
Amendment Effective Date.
“Significant Loan
Party” means each Borrower and any other Loan Party with assets included
in Collateral having a value of at least $50,000,000 as of the end of the
preceding fiscal year of the Company.
“Single Employer Plan”
means a single employer plan, as defined in Section 4001(a)(15) of ERISA,
that (a) is maintained for employees of any Loan Party or any ERISA Affiliate
and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
“Solvent” means, with
respect to any Person on a particular date, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
“Specified Collateral”
has the meaning specified in the Security Agreement and in the Canadian Security
Agreement.
“Subsidiary” of any
Person means any corporation, partnership, joint venture, limited liability
company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits
of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
“Supermajority
Lenders” means, at any time, Lenders owed or holding at least 66 2/3% in
interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and (b) the aggregate Unused Revolving Credit
Commitment at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded from
the determination of Supermajority Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time and (B) the Unused Revolving Credit
Commitment of such Lender at such time.
“Type” refers to the
distinction between Advances bearing interest at the Base Rate and Advances
bearing interest at the Eurodollar Rate.
“UCC” means the
Uniform Commercial Code as in effect in the State of New York; provided that, if
perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, “UCC” means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.
“Unissued Letter of Credit
Commitment” means, with respect to any Issuing Bank, the obligation of
such Issuing Bank to issue Letters of Credit for the account of the Company or
its specified Subsidiaries in an amount equal to the excess of (a) the amount of
its Letter of Credit Commitment over (b) the aggregate Available Amount of all
Letters of Credit issued by such Issuing Bank.
“Unused Revolving Credit
Commitment” means, with respect to each Lender at any time, (a) such
Lender’s Revolving Credit Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, plus (ii) such
Lender’s Ratable Share of (A) the aggregate Available Amount of all the Letters
of Credit outstanding at such time and (B) the aggregate principal amount of all
Advances made by each Issuing Bank pursuant to Section 2.03(c) that have
not been ratably funded by such Lender and outstanding at such
time.
“US Guarantor” means
the Company and each US Subsidiary Guarantor.
“US Subsidiary
Guarantor” means the direct and indirect wholly-owned (other than
directors’ qualifying shares or similar holdings under applicable law)
Subsidiaries of the Company organized under the laws of a state of the United
States of America as listed on Part A of Schedule II hereto and, as of the
date of such requirement, each other Subsidiary of the Company that shall be
required to execute and deliver a guaranty pursuant to
Section 5.01(i).
“Voting Stock” means
capital stock issued by a corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.
“Withdrawal Liability”
has the meaning specified in Part I of Subtitle E of Title IV of
ERISA.
SECTION
1.02. Computation of Time
Periods. In
this Agreement in the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including” and the words
“to” and “until” each mean “to but excluding”.
SECTION
1.03. Accounting Terms. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles in the United States of
America consistent with those applied in the preparation of the financial
statements referred to in Section 4.01(e) (“GAAP”).
SECTION
1.04. Reserves. When
any Reserve is to be established or a change in any amount, percentage, reserve,
eligibility criteria or other item in the definitions of the terms “Borrowing
Base”, “Eligible Inventory”, “Eligible Receivables”, “Eligible Real Property”,
“Eligible Equipment” and “Rent Reserve” is to be determined in each case in the
Agent’s “reasonable discretion”, such Reserve shall be implemented or such
change shall become effective on the Business Day immediately following delivery
of a written notice thereof to the Borrower, or immediately, without prior
written notice, during the continuance of a Default.
ARTICLE II
AMOUNTS
AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION
201. The Advances and Letters of
Credit.
(a) Revolving Credit
Facility. Each Non-Extending Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Company from
time to time on any Business Day during the period from the Amendment Effective
Date until the Initial Termination Date, and each Extending Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Advances from
time to time on any Business Day during the period from the Amendment Effective
Date until the Extension Termination Date, in each case (i) in an amount
for each such Advance not to exceed such Lender’s Unused Revolving Credit
Commitment at such time and (ii) in an aggregate amount for all such Advances
not to exceed such Lender’s ratable portion (based on the aggregate amount of
the Unused Revolving Credit Commitments at such time) of the Revolving Credit
Availability Amount at such time. Each Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof (or such lesser amount as may be applied and reborrowed in accordance
with Section 2.18) and shall consist of Advances of the same Type made on the
same day (x) by the Non-Extending Lenders ratably according to their respective
Revolving Credit Commitments and (y) by the Extending Lenders ratably according
to their respective Revolving Credit Commitments. Within the limits
of each Lender’s Revolving Credit Commitment, the Company may borrow under this
Section 2.01(a), prepay pursuant to Section 2.10 and reborrow under
this Section 2.01(a).
(b) Letters of
Credit. Each
Issuing Bank agrees, on the terms and conditions hereinafter set forth, in
reliance upon the agreements of the other Lenders set forth in this Agreement,
to issue letters of credit (each, a “Letter of Credit”)
for the account of the Company and its specified Subsidiaries from time to time
on any Business Day during the period from the Amendment Effective Date until 30
days before the Extension Termination Date in an aggregate Available Amount not
to exceed (i) for all Letters of Credit at any time the Letter of Credit
Facility at such time, (ii) for all Letters of Credit issued by each Issuing
Bank at any time such Issuing Bank’s Letter of Credit Commitment at such time
and (iii) for each such Letter of Credit an amount equal to the Unused
Revolving Credit Commitments of the Lenders at such time. No Letter
of Credit shall have an expiration date (including all rights of the Company or
the beneficiary to require renewal) later than 10 Business Days before the
Extension Termination Date. Within the limits referred to above, the
Company may from time to time request the Issuance of Letters of Credit under
this Section 2.01(b). Each letter of credit listed on
Schedule 2.01(b) shall be deemed to constitute a Letter of Credit issued
hereunder, and each Lender that is an issuer of such a Letter of Credit shall,
for purposes of Section 2.03, be deemed to be an Issuing Bank for each such
letter of credit, provided that any renewal or replacement of any such letter of
credit shall be issued by an Issuing Bank pursuant to the terms of this
Agreement. Each Letter of Credit issued and outstanding under the
Existing Credit Agreement as of the Amendment Effective Date shall continue in
full force and effect under this Agreement after the Amendment Effective
Date.
SECTION
2.02 Making the
Advances.
(a) Except
as otherwise provided in Section 2.03(c), each Borrowing shall be made on
notice, given not later than (x) 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M.
(New York City time) on the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the applicable Borrower to the
Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Borrowing (a “Notice of Borrowing”)
shall be by telephone, confirmed promptly in writing, or by telecopier, in
substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing,
(iii) aggregate
amount of
such Borrowing and whether such Borrowing shall be comprised of Advances made by
the Non-Extending Lenders or shall be comprised of Advances made by the
Extending Lenders, and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, the initial Interest Period for each such
Advance. Each Lender shall, before 1:00 P.M. (New York City
time) on the date of such Borrowing make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day
funds, such Lender’s ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Lenders. After the Agent’s receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the applicable Borrower at the Agent’s
address referred to in Section 9.02(a).
(b) Anything
in subsection (a) above to the contrary notwithstanding, (i) the
Borrowers may not select Eurodollar Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $10,000,000 or if the obligation
of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant
to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may not
be outstanding as part of more than eighteen separate Borrowings.
(c) Each
Notice of Borrowing shall be irrevocable and binding on the Borrower delivering
such notice. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
applicable Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure of such Borrower to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such failure,
is not made on such date.
(d) Unless
the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s
ratable portion of such Borrowing, the Agent may assume that such Lender has
made such portion available to the Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02, as applicable,
and the Agent may, in reliance upon such assumption, make available to the
applicable Borrower on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such ratable portion
available to the Agent, such Lender and the applicable Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at
(i) in the case of a Borrower, the interest rate applicable at the time to
the Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender’s
Advance as part of such Borrowing for purposes of this Agreement.
(e) The
failure of any Lender to make the Advance to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION
2.03. Issuance of and Drawings and
Reimbursement Under Letters of Credit.
(a) Request for
Issuance. (i) Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed Issuance of such Letter of
Credit (or on such shorter notice as the applicable Issuing Bank may agree), by
the Company to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof. Each such notice by the Company of Issuance of
a Letter of Credit (a “Notice of Issuance”)
shall be by telephone, confirmed promptly in writing, or by telecopier,
specifying therein the requested (A) date of such Issuance (which shall be
a Business Day), (B) Available Amount of such Letter of Credit,
(C) expiration date of such Letter of Credit (which shall not be later than
10 Business Days before the Extension Termination Date); provided that after
giving effect to each Issuance, the sum of the Available Amount of Letters of
Credit that expire after the Initial Termination Date plus the principal amount
of outstanding Advances owed to the Extending Lenders shall not exceed the
Revolving Credit Facility-B, (D) name and address of the beneficiary of
such Letter of Credit and (E) form of such Letter of Credit, such Letter of
Credit shall be issued pursuant to such application and agreement for letter of
credit as such Issuing Bank and the Company shall agree for use in connection
with such requested Letter of Credit (a “Letter of Credit
Agreement”). If the requested form of
such
Letter of Credit is acceptable to such Issuing Bank in its reasonable discretion
(it being understood that any such form shall have only explicit documentary
conditions to draw and shall not include discretionary conditions), such Issuing
Bank will, upon fulfillment of the applicable conditions set forth in
Section 3.02, make such Letter of Credit available to the Company at its
office referred to in Section 9.02 or as otherwise agreed with the Company
in connection with such Issuance. In the event and to the extent that
the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Participations. By
the Issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing or decreasing the amount thereof) and without any further action on
the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Ratable Share of
the Available Amount of such Letter of Credit. The Company hereby
agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of such Issuing Bank, such Lender’s
Ratable Share of each drawing made under a Letter of Credit funded by such
Issuing Bank and not reimbursed by the Company on the date funded, or of any
reimbursement payment required to be refunded to the Company for any reason,
which amount will be advanced, and deemed to be a Advance hereunder, regardless
of the satisfaction of the conditions set forth in
Section 3.02. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its
participation in each Letter of Credit will be automatically adjusted to reflect
such Lender’s Ratable Share of the Available Amount of such Letter of Credit at
each time such Lender’s Revolving Credit Commitment is amended pursuant to an
assignment in accordance with Section 9.07 or otherwise pursuant to this
Agreement. Notwithstanding anything contained in this
Section 2.03(b) to the contrary, each Non-Extending Lender’s participations
in Letters of Credit that expire after the Initial Termination Date shall
terminate upon the Initial Termination Date.
(c) Drawing and
Reimbursement. The
payment by an Issuing Bank of a draft drawn under any Letter of Credit which is
not reimbursed by the Company on the date funded shall constitute for all
purposes of this Agreement the making by any such Issuing Bank of a Advance,
which shall be a Base Rate Advance, in the amount of such draft, without regard
to whether the making of such a Advance would exceed such Issuing Bank’s Unused
Revolving Credit Commitment. Each Issuing Bank shall give prompt
notice to the Company and the Agent of each drawing under any Letter of Credit
issued by it. Upon written demand by such Issuing Bank, with a copy
of such demand to the Agent and the Company, each Lender shall pay to the Agent
such Lender’s Ratable Share of such outstanding Advance pursuant to
Section 2.03(b). Each Lender acknowledges and agrees that its
obligation to make Advances pursuant to this paragraph (c) in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Promptly after receipt thereof, the Agent shall transfer
such funds to such Issuing Bank. Each Lender agrees to fund its
Ratable Share of an outstanding Advance on (i) the Business Day on which
demand therefor is made by such Issuing Bank, provided that notice
of such demand is given not later than 11:00 A.M. (New York City time)
on such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. If and to
the extent that any Lender shall not have so made the amount of such Advance
available to the Agent, such Lender agrees to pay to the Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by any such Issuing Bank until the date such amount is paid to the Agent,
at the Federal Funds Rate for its account or the account of such Issuing Bank,
as applicable. If such Lender shall pay to the Agent such amount for
the account of any such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Advance made by such Issuing Bank shall be reduced by such amount
on such Business Day.
(d) Letter
of Credit Reports. Each
Issuing Bank shall furnish (A) to the Agent (with a copy to the Company) on
the first Business Day of each month a written report summarizing Issuance and
expiration dates of Letters of Credit issued by such Issuing Bank during the
preceding month and drawings during such month under all Letters of Credit and
(B) to the Agent (with a copy to the Company) on the first Business Day of
each calendar quarter a written report setting forth the average daily aggregate
Available Amount during the preceding calendar quarter of all Letters of Credit
issued by such Issuing Bank.
(e) Failure to Make
Advances. The
failure of any Lender to make the Advance to be made by it on the date specified
in Section 2.03(c) shall not relieve any other Lender of its obligation
hereunder to make its Advance on such date, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be made by such other
Lender on such date. No failure by any Lender to make such Advances
shall limit or restrict the availability of any Letter of Credit to the
Company.
SECTION
2.04. Fees.
(a) Non-Extending Lender
Commitment Fee. The Company agrees to pay to the Agent for the
account of each Non-Extending Lender a commitment fee on the aggregate amount of
such Lender’s Unused Revolving Credit Commitment from the Amendment Effective
Date until the Initial Termination Date calculated by multiplying such Lender’s
Unused Revolving Credit Commitment by the Applicable Percentage in effect from
time to time, payable in arrears quarterly on the last day of each January,
April, July and October, commencing April 30, 2009, and on the Initial
Termination Date; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Extending Lender Commitment
Fee. The
Company agrees to pay to the Agent for the account of each Extending Lender
(other than a Defaulting Lender) a commitment fee on the aggregate amount of
such Lender’s Unused Revolving Credit Commitment from the Amendment Effective
Date in the case of each Extending Lender and from the effective date specified
in the Assumption Agreement or the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Extension
Termination Date calculated by multiplying such Lender’s Unused Revolving Credit
Commitment by 1.00%, payable in arrears quarterly on the last day of each
January, April, July and October, commencing April 30, 2009, and on the
Extension Termination Date; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(c) Letter of Credit
Fees. (i) The
Company shall pay to the Agent for the account of each Extending Lender (other
than a Defaulting Lender) and each Non-Extending Lender a commission on such
Lender’s Ratable Share of the average daily aggregate Available Amount of all
Letters of Credit issued and outstanding from time to time at a rate per annum
equal to the Applicable Margin for Eurodollar Rate Advances for Advances made by
such Lender in effect from time to time during such calendar quarter, payable in
arrears quarterly on the last day of each January, April, July and October,
commencing with April 30, 2009, and on the Extension Termination Date; provided that the
Applicable Margin shall be 2% above the Applicable Margin in effect if the
Company is required to pay default interest pursuant to
Section 2.07(b).
(ii) The
Company shall pay to each Issuing Bank, for its own account, a fronting fee and
such other commissions, issuance fees, transfer fees and other fees and charges
in connection with the Issuance or administration of each Letter of Credit as
the Company and such Issuing Bank shall agree.
(d) Agent’s
Fees. The
Company shall pay to the Agent for its own account the fees set forth in the fee
letter dated March 5, 2009 between the Company and the Agent, as such fee
letter may from time to time be amended by the Company and the
Agent.
SECTION
2.05. Termination or Reduction of
the Commitments. (a) Optional. The
Company shall have the right, upon at least three Business Days’ notice to the
Agent, to terminate in whole or permanently reduce in part the Unissued Letter
of Credit Commitments and the Unused Revolving Credit Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) if made under the Revolving Credit Facility–A, shall be made ratably
among the Non-Extending Lenders in accordance with their Revolving Credit
Commitments and, if made under the Revolving Credit Facility–B, shall be made
ratably among the Extending Lenders in accordance with their Revolving Credit
Commitments, provided that the
Revolving Credit Commitments of the Non-Extending Lenders may be reduced by the
Company on a non-ratable basis in connection with any Non-Extending
Lender’s
agreement
to convert any portion of its Revolving Credit Commitment from the Revolving
Credit Facility-A to the Revolving Credit Facility-B.
(b) Mandatory
. The
Letter of Credit Facility shall be permanently reduced from time to time on the
date of each reduction in the Revolving Credit Facility by the amount, if any,
by which the amount of the Letter of Credit Facility exceeds the Revolving
Credit Facility after giving effect to such reduction of the Revolving Credit
Facility.
SECTION
2.06. Repayment of
Advances. (a)
Revolving Credit
Facility. The Company shall repay to the Agent for the ratable
account of each Lender, as applicable, (i) in the case of each Non-Extending
Lender, on the Initial Termination Date, and (ii) in the case of each Extending
Lender, on the Extension Termination Date, in each case, the aggregate principal
amount of the Advances made by such Lender then outstanding.
(b) Letter of Credit
Drawings. The
obligations of the Company under any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by the Company is
without prejudice to, and does not constitute a waiver of, any rights the
Company might have or might acquire as a result of the payment by any Lender of
any draft or the reimbursement by the Company thereof, including, without
limitation, pursuant to Section 9.12):
(i) any lack
of validity or enforceability of this Agreement or any Note, or of any Letter of
Credit Agreement, any Letter of Credit or any other agreement or instrument
relating thereto (such Letter of Credit Agreement, Letter of Credit and related
instruments or instruments being, collectively, the “L/C Related
Documents”);
(ii) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the obligations of the Company in respect of any L/C Related Document
or any other amendment or waiver of or any consent to departure from all or any
of the L/C Related Documents;
(iii) the
existence of any claim, set-off, defense or other right that the Company may
have at any time against any beneficiary or any transferee of a Letter of Credit
(or any Persons for which any such beneficiary or any such transferee may be
acting), any Issuing Bank, the Agent, any Lender or any other Person, whether in
connection with the transactions contemplated by the L/C Related Documents or
any unrelated transaction;
(iv) any
statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit;
(vi) any
exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Company in respect of the
L/C Related Documents; or
(vii) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including, without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Company or a
guarantor.
SECTION
2.07. Interest on Advances.
(a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing by such Borrower to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate
Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base
Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable in arrears quarterly on
the last day of each January, April, July and October during such periods and on
the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate
Advances. During such periods as such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each Interest Period
for such Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more
than three months, on the day of every third month during such Interest Period
corresponding to the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
b) Default
Interest. Upon
the occurrence and during the continuance of an Event of Default under
Section 6.01(a), the Agent may, and upon the request of the Required
Lenders shall, require and notify the Borrowers to pay interest (“Default Interest”) on
(i) the unpaid principal amount of each Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount
of any interest, fee or other amount payable hereunder that is not paid when
due, from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above, provided, however, that
following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously
required by the Agent.
SECTION
2.08. Interest Rate
Determination. (a) Each
Reference Bank agrees, if requested by the Agent, to furnish to the Agent timely
information for the purpose of determining each Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely information
to the Agent for the purpose of determining any such interest rate, the Agent
shall determine such interest rate on the basis of timely information furnished
by the remaining Reference Banks. The Agent shall give prompt notice
to the Company and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with
respect to any Eurodollar Rate Advances, Lenders owed at least 50% of the then
aggregate principal amount thereof notify the Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Company and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrowers and such Lenders that the
circumstances causing such suspension no longer exist.
(c) If any
Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the
definition of “Interest Period” in Section 1.01, the Agent will forthwith
so notify such Borrower and the Lenders and such Advances will automatically, on
the last day of the then existing Interest Period therefor, Convert into Base
Rate Advances.
(d) On the
date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall automatically Convert
into Base Rate Advances.
(e) Upon the
occurrence and during the continuance of any Event of Default under
Section 6.01(a) or any Borrowing Base Deficiency, (i) each Eurodollar
Rate Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation
of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended.
(f) If Reuter
Screen LIBOR01 is unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances,
(i) the Agent
shall forthwith notify the Borrowers and the Lenders that the interest rate
cannot be determined for such Eurodollar Rate Advances,
(ii) with
respect to Eurodollar Rate Advances, each such Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and
(iii) the
obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Company and the Lenders that the circumstances causing such
suspension no longer exist.
(g)
Interest Act
(Canada). With
respect to Advances made to Kodak Canada, whenever a rate of interest hereunder
is calculated on the basis of a year (the “deemed year”) which
contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest shall be expressed as a yearly rate for
purposes of the Interest Act (Canada) by multiplying such rate of interest by
the actual number of days in the calendar year of calculation and dividing it by
the number of days in the deemed year.
(h)
Nominal Rates; No
Deemed Reinvestment. With
respect to Advances made to Kodak Canada, the principle of deemed reinvestment
of interest shall not apply to any interest calculation under this Agreement;
all interest payments to be made hereunder shall be paid without allowance or
deduction for reinvestment or otherwise, before and after maturity, default and
judgment. The rates of interest specified in this Agreement are
intended to be nominal rates and not effective rates. Interest
calculated hereunder shall be calculated using the nominal rate method and not
the effective rate method of calculation.
(i) Interest Paid by Kodak
Canada. Notwithstanding
any provision of this Agreement, in no event shall the aggregate “interest” (as
defined in Section 347 of the Criminal Code (Canada)) payable by Kodak
Canada under this Agreement exceed the effective annual rate of interest on the
“credit advanced” (as defined in the Section) under this Agreement lawfully
permitted by that Section and, if any payment, collection or demand pursuant to
this Agreement in respect of “interest” (as defined in that Section) is
determined to be contrary to the provisions of that Section, such payment,
collection or demand shall be deemed to have been made by mutual mistake of
Kodak Canada and the Lenders and the amount of such payment or collection shall
be refunded to Kodak Canada. For the purposes of this Agreement, the
effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the relevant term
and, in the event of a dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Lenders will be prima facie evidence of
such rate.
SECTION
2.09. Optional Conversion of
Advances. Either
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all or any portion of the Advances made to
it of one Type comprising the same Borrowing into Advances of the other Type;
provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising
part of the same Borrowing shall be made ratably among the Lenders in accordance
with their Commitments. Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion
shall be irrevocable and binding on the Borrower giving such
notice.
SECTION
2.10. Prepayments of
Advances. (a) Optional. Either
Borrower may, upon notice at least two Business Days’ prior to the date of such
prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to
the Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given such Borrower shall, prepay the outstanding principal
amount of the Advances comprising part of the same Borrowing made to it in whole
or in part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x)
each partial prepayment shall be in an aggregate principal amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and (y) in the
event of any such prepayment of a Eurodollar Rate Advance, such Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to
Section 9.04(c); provided, further, that any
such prepayments applied in respect of the Revolving Credit Facility-A shall be
paid to the Agent for the ratable account of each Non-Extending Lender, and any
such prepayments applied in respect of the Revolving Credit Facility-B shall be
paid to the Agent for the ratable account of each Extending Lender.
(b) Mandatory. (i) Each
Borrower shall, on each Business Day, if applicable, prepay (with no
corresponding commitment reduction) an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount equal to the amount
by which (A) the sum of (x) the aggregate principal amount of the
Advances then outstanding plus (y) the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the Revolving Credit
Availability Amount; provided that (x)
until April 21, 2009, the foregoing calculation shall exclude the Available
Amount under Letters of Credit outstanding and amounts owing in respect of
Secured Agreements (other than the Loan Documents) on the Amendment Effective
Date and (y) in respect of any prepayment under this subsection directly
attributable to any adjustment of Reserves, such prepayment shall be made not
later than the Business Day immediately following the date such adjusted
Reserves became effective.
(ii) Each
prepayment made pursuant to this Section 2.10(b) shall be made together
with any interest accrued to the date of such prepayment on the principal
amounts prepaid and, in the case of any prepayment of a Eurodollar Rate Advance
on a date other than the last day of an Interest Period or at its maturity, any
additional amounts which the Borrower shall be obligated to reimburse to the
Lenders in respect thereof pursuant to Section 9.04(c).
(iii) The Agent
shall give prompt notice of any prepayment required under this
Section 2.10(b) to Lenders.
SECTION
2.11. Increased
Costs. (a) If,
due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances or of agreeing to issue or of issuing or maintaining or
participating in Letters of Credit (excluding for purposes of this
Section 2.11 any such increased costs resulting from (x) Taxes or
Other Taxes (as to which Section 2.14 shall govern) and (y) changes in
the basis of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the laws of which
such Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Company shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would not,
in the judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost,
submitted to the Company and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any
Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the
existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the issuance
or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender (with a copy of such
demand to the Agent), the Company shall pay to the Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender’s commitment
to lend
or to
issue or participate in Letters of Credit hereunder or to the issuance or
maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Company and the Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION
2.12. Illegality. Notwithstanding
any other provision of this Agreement, if any Lender shall notify the Agent that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (a) each Eurodollar
Rate Advance will automatically, upon such demand, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Company and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION
2.13. Payments and
Computations. (a) The
Borrowers shall make each payment hereunder, irrespective of any right of
counterclaim or set-off, not later than 11:00 A.M. (New York City
time) on the day when due in Dollars to the Agent at the Agent’s Account in same
day funds. The Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal, interest, fees or commissions
ratably (other than amounts payable pursuant to Section 2.04, 2.11, 2.14 or
9.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a
result of a Commitment Increase pursuant to Section 2.21, and upon the Agent's
receipt of such Lender's Assumption Agreement and recording of the information
contained therein in the Register, from and after the applicable Increase Date
the Agent shall treat each Assuming Lender as an Extending Lender under this
Agreement and shall make all payments hereunder and under any Notes issued in
connection therewith pro rata among the Extending Lenders taking into account
the interest assumed thereby by the Assuming Lender. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(c), from and
after the effective date specified in such Assignment and Acceptance, the Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves.
(b) Each
Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereunder or under the Note held by such
Lender, to charge from time to time against any or all of such Borrower’s
accounts with such Lender any amount so due.
(c)
All
computations of interest based on the Base Rate shall be made by the Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate or the Federal Funds Rate and of fees
and Letter of Credit commissions shall be made by the Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees or commissions are payable. Each determination by
the Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d)
Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest, fee or commission, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e)
Unless
the Agent shall have received notice from the applicable Borrower prior to the
date on which any payment is due to the Lenders hereunder that such Borrower
will not make such payment in full,
the Agent
may assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent any Borrower shall not have so
made such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
(f)
If the
Agent receives funds for application to the Obligations of the Borrowers under
or in respect of the Loan Documents under circumstances for which the Loan
Documents do not specify, or the applicable Borrower does not direct, the
Advances to which, or the manner in which, such funds are to be applied, the
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lenders in accordance with such Lender’s pro rata share of the sum of (A)
the aggregate principal amount of all Advances outstanding at such time and (b)
the aggregate Available Amount of all Letters of Credit outstanding at such
time, in repayment or prepayment of such of the outstanding Advances or other
obligations then owing to such Lender.
SECTION
2.14. Taxes. (a) Any
and all payments by any Loan Party to or for the account of any Lender or the
Agent hereunder or under the Notes shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or in which its principal executive office is located, or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as “Taxes”). If
any Loan Party shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the Agent,
(i) the sum payable to such Loan Party shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender
or the Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall
make such deductions and (iii) such Loan Party shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In
addition, each Loan Party shall pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made by such Loan Party hereunder or under any other Loan
Documents or from the execution, delivery or registration of, performing under,
or otherwise with respect to, this Agreement or the other Loan Documents
(hereinafter referred to as “Other
Taxes”).
(c)
The Loan
Parties shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes (including, without limitation,
taxes of any kind imposed or asserted by any jurisdiction on amounts payable
under this Section 2.14) imposed on or paid by such Lender or the Agent (as
the case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor with appropriate supporting
documentation.
(d)
Within 30
days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing such payment to the extent
such a receipt is issued therefor, or other written proof of payment thereof
that is reasonably satisfactory to the Agent. In the case of any
payment hereunder or under the Notes or any other documents to be delivered
hereunder by or on behalf of a Loan Party through an account or branch outside
the United States or by or on behalf of a Loan Party by a payor that is not a
United States person, if such Loan Party determines that no Taxes are payable in
respect thereof, such Loan Party shall furnish, or shall cause such payor to
furnish, to the Agent, at such address, an opinion of counsel reasonably
acceptable to the Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and
subsection (e), the terms “United States” and
“United States
person” shall have the meanings specified in Section 7701 of the
Code.
(e)
Each
Lender organized under the laws of a jurisdiction outside the United States, on
or prior to the date of its execution and delivery of this Agreement in the case
of each Lender that has not provided such forms in accordance with the terms of
the Existing Credit Agreement, on or prior to the designation of any different
Applicable Lending Office and on the date of the Assumption Agreement or the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Company (but only so long as such Lender remains lawfully able to
do so), shall provide each of the Agent and the Company with two original
Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a Lender
that has certified in writing to the Agent that it is not (i) a “bank” as
defined in Section 881(c)(3)(A) of the Code), (ii) a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of any Loan Party
or (iii) a controlled foreign corporation related to any Loan Party (within the
meaning of Section 864(d)(4) of the Code), Internal Revenue Service Form
W-8BEN, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or any other Loan Document or, in the case of a Lender that has
certified that it is not a “bank” as described above, certifying that such
Lender is a foreign corporation, partnership, estate or trust. If the
form provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided, however, that, if at
the date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such
date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the Amendment Effective Date
by Internal Revenue Service Form W-8BEN or W-8ECI or the related
certificate described above, that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Company and shall not
be obligated to include in such form or document such confidential information,
except directly to a governmental authority or other Person subject to a
reasonable confidentiality agreement. In addition, upon the written
request of the Borrower, any other certification, identification, information,
documentation or other reporting requirement if (i) delivery thereof is required
by a change in the law, regulation, administrative practice or any applicable
tax treaty as a precondition to exemption from or a reduction in the rate of
deduction or withholding; (ii) the Agent or Lender, as the case may be, is
legally entitled to make delivery such item; and (iii) delivery of such item
will not result in material additional costs unless Borrower shall have agreed
in writing to indemnify Lender or the Agent for such costs.
(f)
For any
period with respect to which a Lender has failed to provide the Company with the
appropriate form, certificate or other document described in
Section 2.14(e) (other than if such failure
is due to a change in law, or in the interpretation or application thereof,
occurring subsequent to the date on which a form, certificate or other document
originally was required to be provided, or if such form, certificate or other
document otherwise is not required under subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.14(a) or (c) with
respect to Taxes imposed by the United States of America or Canada by reason of
such failure; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Loan Parties, at such
Lender’s expense, shall take such steps as the Lender shall reasonably request
to assist the Lender to recover such Taxes.
(g)
Any
Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h)
If any
Lender determines, in its sole discretion, that it has actually and finally
realized, by reason of a refund, deduction or credit of any Taxes paid or
reimbursed by a Loan Party pursuant to subsection (a) or (c) above in
respect of payments under this Agreement or the other Loan Documents, a current
monetary benefit that it would otherwise not have obtained, and that would
result in the total payments under this Section 2.14 exceeding
the
amount needed to make such Lender whole, such Lender shall pay to the applicable
Loan Party, with reasonable promptness following the date on which it actually
realizes such benefit, an amount equal to the lesser of the amount of such
benefit or the amount of such excess, in each case net of all out-of-pocket
expenses in securing such refund, deduction or credit.
(i) If any
Loan Party determines in good faith that a reasonable basis exists for
contesting the applicability of any Tax or Other Tax, the Agent or the relevant
Lender shall cooperate with such Loan Party, upon the request and at the expense
of such Loan Party, in challenging such Tax or Other Tax. Nothing in
this Section 2.14(i) shall require the Agent or any Lender to disclose the
contents of its tax returns or other confidential information to any
Person.
SECTION
2.15. Sharing of Payments,
Etc. Without
expanding the rights of any Lender under this Agreement, if any Appropriate
Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Advances owing
to it (other than (x) as payment of an Advance made by an Issuing Bank
pursuant to the first sentence of Section 2.03(c) or (y) pursuant to
Section 2.11, 2.14 or 9.04(c)) in excess of its ratable share (according to
the proportion of (i) the amount of such Advances due and payable to such
Lender at such time to (ii) the aggregate amount of the Advances due and
payable at such time to all Appropriate Lenders hereunder) of payments on
account of the Advances obtained by all the Appropriate Lenders, such Lender
shall forthwith purchase from the other Appropriate Lenders such participations
in the Advances owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Appropriate Lender shall be rescinded
and such Appropriate Lender shall repay to the purchasing Lender the purchase
price to the extent of such Appropriate Lender’s ratable share (according
to the proportion of (i) the purchase price paid to such Lender to
(ii) the aggregate purchase price paid to all Appropriate Lenders) of such
recovery together with an amount equal to such Appropriate Lender’s ratable
share (according to the proportion of (i) the amount of such Lender’s
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered; and provided further that, so long
as the Advances shall not have become due and payable pursuant to
Section 6.01, any excess payment received by any Appropriate Lender shall
be shared on a pro rata basis only with other Appropriate
Lenders. The Borrowers agree that any Appropriate Lender so
purchasing a participation from another Appropriate Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the Loan
Parties in the amount of such participation. For the purposes of this
Section, “Appropriate
Lender” shall mean, in respect of the Revolving Credit Facility-A, each
Non-Extending Lender, and in respect of the Revolving Credit Facility-B, each
Extending Lender.
SECTION
2.16. Evidence of Debt
. (a) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting
from each Advance owing to such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder in respect of Advances. Each Borrower agrees that upon
notice by any Lender to such Borrower (with a copy of such notice to the Agent)
to the effect that a Note is required or appropriate in order for such Lender to
evidence (whether for purposes of pledge, enforcement or otherwise) the Advances
owing to, or to be made by, such Lender, such Borrower shall promptly execute
and deliver to such Lender a Note, as applicable, properly completed, payable to
the order of such Lender in a principal amount up to the Revolving Credit
Commitment of such Lender.
(b) The
Register maintained by the Agent pursuant to Section 9.07(d) shall include
a control account, and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount of each Borrowing
made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from each Borrower hereunder and
each Lender’s share thereof.
(c)
Entries
made in good faith by the Agent in the Register pursuant to subsection (b)
above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of
the
amount of
principal and interest due and payable or to become due and payable from each
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the
failure of the Agent or such Lender to make an entry, or any finding that an
entry is incorrect, in the Register or such account or accounts shall not limit
or otherwise affect the obligations of any Borrower under this Agreement with
respect to Advances made and not repaid.
SECTION
2.17. Use of
Proceeds. The
proceeds of the Advances shall be available (and each Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of the Company
and its Subsidiaries, provided, however, that the
proceeds of the Advances shall not be used to prepay or redeem the Convertible
Notes.
SECTION
2.18. Cash
Management. (a) Within
30 days after the Amendment Effective Date (or such later date as the Agent may
specify in its sole discretion, which such later date shall in no case be later
than 60 days following the Amendment Effective Date), the Company
shall:
(i) deliver
to the Agent a Schedule of all Deposit Accounts other than Excluded
Accounts maintained by the Loan Parties in the United States or Canada, which
Schedule shall include, with respect to each depository (A) the name
and address of such depository, (B) the account number(s) maintained with such
depository and (C) a contact person at such depository; and
(ii) enter
into a blocked account agreement (each, a “Blocked Account
Agreement”), satisfactory in form and substance to the Agent in its
reasonable discretion, with respect to each Concentration Account existing as of
such date (other than any Concentration Account maintained with the
Agent);
provided that to the
extent that the Agent has been granted control, as determined by the Agent in
its reasonable discretion, with respect to the Existing Accounts prior to the
Amendment Effective Date, the Loan Parties are not required to comply with the
provisions of the foregoing clause (a).
(b)
Each
Blocked Account Agreement or such other account control agreement, if
applicable, for each Concentration Account shall require, during the continuance
of a Cash Control Trigger Event (and delivery of notice thereof from the Agent),
the ACH or wire transfer on each Business Day of all available cash receipts
held in the Concentration Account to a concentration account maintained by the
Agent (an “Agent Sweep
Account”) located in the United States (in respect of Deposit Accounts of
the Company and the US Subsidiary Guarantors) or in Canada (in respect of
Deposit Accounts of Kodak Canada and the Canadian Subsidiary
Guarantors).
(c)
If
(i) at any time during the continuance of a Cash Control Trigger Event, any
cash or Cash Equivalents owned by a Loan Party are deposited in any account
(other than an Excluded Account), or held or invested in any manner (other than
(x) in the Concentration Account that is subject to the Blocked Account
Agreement, (y) in a Concentration Account that is maintained with the Agent or
(z) a Deposit Account which is swept daily to a Concentration Account subject to
a Blocked Account Agreement or maintained with the Agent), or (ii) at any
time, a Concentration Account shall cease to be subject to a Blocked Account
Agreement or maintained with the Agent, the applicable Loan Party shall
immediately furnish the Agent with written notice thereof and the Agent may
require such Loan Party to close such account and have any such funds
transferred to a Concentration Account which is subject to a Blocked Account
Agreement or maintained with the Agent.
(d)
A Loan
Party may close any Deposit Account or a Concentration Account, maintain
existing Deposit Accounts or Concentration Accounts and/or open new Deposit
Accounts or Concentration Accounts, subject to the execution and delivery to the
Agent of appropriate Blocked Account Agreements with respect to each
Concentration Account (except with respect to any Concentration Account
maintained with the Agent) consistent with the provisions of this
Section 2.18 and otherwise reasonably satisfactory to the
Agent. The applicable Loan Party shall furnish the Agent with prior
written notice of its intention to open or close a Concentration Account and the
Agent shall promptly notify such Loan Party as to whether the Agent shall
require a Blocked Account Agreement with the Person with whom such account will
be maintained.
(e)
Each
Agent Sweep Account shall at all times be under the sole dominion and control of
the Agent. Each Loan Party hereby acknowledges and agrees that
(i) it has no right of withdrawal from the Agent Sweep Account,
(ii) the funds on deposit in an Agent Sweep Account shall at all times
continue to be collateral security for all of the Secured Obligations, and
(iii) the funds on deposit in an Agent Sweep Account shall be applied as
provided in Section 2.18(i) of this Agreement and in the Security
Agreement. In the event that, notwithstanding the provisions of this
Section 2.18, during the continuance of a Cash Control Trigger Event, a
Loan Party receives or otherwise has dominion and control of any such proceeds
or collections, such proceeds and collections shall be held in trust by such
Loan Party for the Agent, shall not be commingled with any of such Loan Party’s
other funds or deposited in any account of such Loan Party and shall promptly be
deposited into a Concentration Account or dealt with in such other fashion as
such Loan Party may be instructed by the Agent.
(f)
Any
amounts remaining in an Agent Sweep Account (i) at any time when a Cash Control
Trigger Event is no longer continuing for purposes of this Agreement or (ii)
after application of amounts received in such Agent Sweep Account as set forth
in subsection (h) below, shall be remitted to the primary Concentration Account
of the Company maintained with the Agent.
(g)
The Agent
shall promptly (but in any event within two (2) Business Days) furnish
written notice to each Person with whom a Concentration Account is maintained
when a Cash Control Trigger Event is no longer continuing for purposes of this
Agreement.
(h)
(i) Any
amounts received in an Agent Sweep Account in the United States shall be applied
to the payment (without a corresponding reduction of Commitments) of all of the
Advances made to the Company (whether then due or not) and to the payment of all
of the other Obligations under the Loan Documents of the Company and the US
Subsidiary Guarantors (other than contingent obligations) (whether then due or
not) in accordance with the Security Agreement (with all Advances deemed due for
purposes thereof). (ii) Any amounts received in an Agent Sweep
Account in Canada shall be applied to the payment (without a corresponding
reduction of Commitments) of all of the Advances made to Kodak Canada (whether
then due or not) and to the payment of all of the other Obligations under the
Loan Documents of Kodak Canada and the Canadian Subsidiary Guarantors (other
than contingent obligations) (whether then due or not) in accordance with the
Canadian Security Agreement (with all Advances deemed due for purposes
thereof). (iii) All payments to be made in accordance with this
subsection (h) in respect of Eurodollar Rate Advances shall be made on the last
day of the applicable Interest Period therefor, and shall be held in the
applicable Agent Sweep Account pending such payment.
(i) The
following shall apply to deposits and payments under and pursuant to this
Agreement:
(i) funds
shall be deemed to have been deposited to an Agent Sweep Account on the Business
Day on which deposited, provided that such deposit is available to the Agent by
4:00 p.m. on that Business Day (except that if the Obligations are being paid in
full, by 2:00 p.m. on that Business Day);
(ii) funds
paid to the Agent, other than by deposit to an Agent Sweep Account, shall be
deemed to have been received on the Business Day when they are good and
collected funds, provided that such payment is available to the Agent by 4:00
p.m. on that Business Day (except that if the Obligations are being paid in
full, by 2:00 p.m. on that Business Day); and
(iii) if a
deposit to an Agent Sweep Account or payment is not available to the Agent until
after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to
have been made at 9:00 a.m. on the then next Business Day.
SECTION
2.19. Defaulting
Lenders. (a) In
the event that, at any time, (i) any Lender shall be a Defaulting Lender,
(ii) such Defaulting Lender shall owe a Defaulted Advance to a Borrower and
(iii) such Borrower shall be required to make any payment hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then such
Borrower may, to the fullest extent permitted by applicable law, set off and
otherwise apply the Obligation of such Borrower to make such payment to or for
the account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. In the event that, on any
date, a Borrower shall so set off and otherwise apply its obligation to make any
such payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off
and
otherwise
applied by such Borrower shall constitute for all purposes of this Agreement and
the other Loan Documents an Advance by such Defaulting Lender made on the date
under the Revolving Credit Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to
Section 2.01. Such Advance shall be considered, for all purposes
of this Agreement, to comprise part of the Borrowing in connection with which
such Defaulted Advance was originally required to have been made pursuant to
Section 2.01, even if the other Advances comprising such Borrowing shall be
Eurodollar Rate Advances on the date such Advance is deemed to be made pursuant
to this subsection (a). A Borrower shall notify the Agent at any
time such Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the
Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required
to be made by a Borrower to or for the account of such Defaulting Lender which
is paid by such Borrower, after giving effect to the amount set off and
otherwise applied by such Borrower pursuant to this subsection (a), shall
be applied by the Agent as specified in subsection (b) or (c) of this
Section 2.19.
(b) In the
event that, at any time, (i) any Lender shall be a Defaulting Lender,
(ii) such Defaulting Lender shall owe a Defaulted Amount to the
Agent or other Lenders and (iii) a Borrower shall make any
payment hereunder or under any other Loan Document to the Agent for the account
of such Defaulting Lender, then the Agent may, on its behalf or on behalf of
such other Lenders and to the fullest extent permitted by applicable law, apply
at such time the amount so paid by such Borrower to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Agent
shall so apply any such amount to the payment of any such Defaulted Amount on
any date, the amount so applied by the Agent shall constitute for all purposes
of this Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the
Agent shall be retained by the Agent or distributed by the Agent to such other
Lenders, ratably in accordance with the respective portions of such Defaulted
Amounts payable at such time to the Agent and such other Lenders and, if the
amount of such payment made by a Borrower shall at such time be insufficient to
pay all Defaulted Amounts owing at such time to the Agent and the other Lenders,
in the following order of priority:
(i) first, to the Agent for any
Defaulted Amount then owing to the Agent in its capacity as Agent;
and
(ii) second, to the Issuing Banks
for any Defaulted Amounts then owing to them, in their capacities as such,
ratably in accordance with such respective Defaulted Amounts then owing to the
Issuing Banks; and
(iii) third, to any other Lenders
for any Defaulted Amounts then owing to such other Lenders, ratably in
accordance with such respective Defaulted Amounts then owing to such other
Lenders.
Any
portion of such amount paid by a Borrower for the account of such Defaulting
Lender remaining, after giving effect to the amount applied by the Agent
pursuant to this subsection (b), shall be applied by the Agent as specified
in subsection (c) of this Section 2.19.
(c)
In the
event that, at any time, (i) any Lender shall be a Defaulting Lender,
(ii) such Defaulting Lender shall not owe a Defaulted Advance or a
Defaulted Amount and (iii) a Borrower, the Agent or any other Lender shall
be required to pay or distribute any amount hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower or
such other Lender shall pay such amount to the Agent to be held by the Agent, to
the fullest extent permitted by applicable law, in escrow or the Agent shall, to
the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Agent in escrow under
this subsection (c) shall be deposited by the Agent in an account with
Citibank, in the name and under the control of the Agent, but subject to the
provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Citibank’s standard terms
applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Agent in escrow
under, and applied by the Agent from time to time in accordance with the
provisions of, this subsection (c). The Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Agent or any other
Lender, as and when such Advances or amounts are required to
be made
or paid and, if the amount so held in escrow shall at any time be insufficient
to make and pay all such Advances and amounts required to be made or paid at
such time, in the following order of priority:
(i) first, to the Agent for any
amount then due and payable by such Defaulting Lender to the Agent hereunder in
its capacity as Agent;
(ii) second, to the Issuing Banks
for any amounts then due and payable to them hereunder, in their capacities as
such, by such Defaulting Lender, ratably in accordance with such respective
amounts then due and payable to the Issuing Banks;
(iii) third, to any other Lenders
for any amount then due and payable by such Defaulting Lender to such other
Lenders hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lenders; and
(iv) fourth, to the Company for
any Advance then required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the
event that any Lender that is a Defaulting Lender shall, at any time, cease to
be a Defaulting Lender, any funds held by the Agent in escrow at such time with
respect to such Lender shall be distributed by the Agent to such Lender and
applied by such Lender to the Obligations owing to such Lender at such time
under this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d)
The
rights and remedies against a Defaulting Lender under this Section 2.19 are
in addition to other rights and remedies that such Borrowers may have against
such Defaulting Lender with respect to any Defaulted Advance and that the Agent
or any Lender may have against such Defaulting Lender with respect to any
Defaulted Amount.
(e) Anything
contained herein to the contrary notwithstanding, in the event that (i) any
Lender shall become a Defaulting Lender and (ii) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting
Lender within five Business Days after the Company’s request that it cure such
default, the Company shall have the right (but not the obligation) to repay such
Defaulting Lender in an amount equal to the principal of, and all accrued
interest on, all outstanding Advances owing to such Lender, together with all
other amounts due and payable to such Lender under the Loan Documents, and such
Lender’s Commitment hereunder shall be terminated immediately
thereafter.
(f) If any
Lender becomes, and during the period it remains, a Defaulting Lender or a
Potential Defaulting Lender, if any Letter of Credit is at the time outstanding,
the Issuing Bank, as the case may be, may, by notice to the Company and such
Defaulting Lender or Potential Defaulting Lender through the Agent, require the
applicable Borrower to Cash Collateralize the obligations of such Borrower to
the Issuing Bank in respect of such Letter of Credit in amount at least equal to
the aggregate amount of the unreallocated obligations (contingent or otherwise)
of such Defaulting Lender or such Potential Defaulting Lender in respect
thereof, or to make other arrangements satisfactory to the Agent, and to the
Issuing Bank, in their sole discretion to protect them against the risk of
non-payment by such Defaulting Lender or Potential Defaulting
Lender.
(g)
If either
Borrower Cash Collateralizes any portion of a Potential Defaulting Lender’s
exposure with respect to an outstanding Letter of Credit, no Borrower shall be
required to pay any fees under Section 2.04(c)(i) to any Potential Defaulting
Lender that is an Extending Lender at any time when the Letter of Credit is so
Cash Collateralized.
SECTION
2.20. Replacement of Certain
Lenders. In
the event a Lender (“Affected Lender”)
shall have (i) become a Defaulting Lender under Section 2.19,
(ii) requested compensation from the Borrowers under Section 2.14 with
respect to Taxes or Other Taxes or with respect to increased costs or capital or
under Section 2.11 or other additional costs incurred by such Lender which,
in any case, are not being incurred generally by the other Lenders, (iii) has
not agreed to any consent, waiver or amendment that requires the agreement of
all Lenders or all affected Lenders in accordance with the terms of
Section 9.01 and as to which the Required Lenders
have
agreed, or (iv) delivered a notice pursuant to Section 2.12 claiming
that such Lender is unable to extend Eurodollar Rate Advances to the Borrowers
for reasons not generally applicable to the other Lenders, then, in any case,
the Company or the Agent may make written demand on such Affected Lender (with a
copy to the Agent in the case of a demand by the Company and a copy to the
Company in the case of a demand by the Agent) for the Affected Lender to assign
at par, and such Affected Lender shall use commercially reasonable efforts to
assign pursuant to one or more duly executed Assignments and Acceptances five
Business Days after the date of such demand, to one or more financial
institutions that comply with the provisions of Section 9.07 which the
Company or the Agent, as the case may be, shall have engaged for such purpose
(“Replacement
Lender”), all of such Affected Lender’s rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, its
Commitment, all Advances owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit hereunder) in accordance with
Section 9.07. The Agent is authorized to execute one or more of
such Assignments and Acceptances as attorney-in-fact for any Affected Lender
failing to execute and deliver the same within 5 Business Days after the date of
such demand. Further, with respect to such assignment, the Affected
Lender shall have concurrently received, in cash, all amounts due and owing to
the Affected Lender hereunder or under any other Loan Document; provided that upon
such Affected Lender’s replacement, such Affected Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.11, 2.14 and 9.04, as well as to any fees accrued for its
account hereunder and not yet paid, and shall continue to be obligated under
Section 8.05 with respect to losses, obligations, liabilities, damages,
penalties, actions, judgments, costs, expenses or disbursements for matters
which occurred prior to the date the Affected Lender is replaced.
SECTION 2.21. Increase in
the Aggregate Commitments. (a)
The Company may, at any time, by notice to the Agent, request that the Revolving
Credit Facility-B be increased by an amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (each a "Commitment Increase")
to be effective as of a date that is at least 90 days prior to the Extension
Termination Date (the "Increase Date") as
specified in the related notice to the Agent; provided, however that (i) in
no event shall the aggregate amount of the Revolving Credit Commitments under
the Revolving Credit Facility-B at any time exceed $500,000,000 and (ii) on the
date of any request by the Company for a Commitment Increase and on the related
Increase Date, the representations and warranties of each Borrower and each
Significant Loan Party contained in each Loan Document to which it is a party
are correct on and as of such date, as though made on and as of such date, and
no event shall have occurred and be is continuing that constitutes a
Default.
(b) The
Agent shall promptly notify such Lenders as the Company may identify for a
Commitment Increase, which notice shall include (i) the proposed amount of such
requested Commitment Increase, (ii) the proposed Increase Date and (iii) the
date by which Lenders wishing to participate in the Commitment Increase must
commit to (x) an increase in the amount of their respective Revolving Credit
Commitments under the Revolving Credit Facility-B and/or (y) convert all or a
portion of their respective Revolving Credit Commitments under the Revolving
Credit Facility-A to Revolving Credit Commitments under the Revolving Credit
Facility-B (the "Commitment
Date"). Each Lender that is willing to participate in such
requested Commitment Increase (each an "Increasing Lender")
shall, in its sole discretion, give written notice to the Agent on or prior to
the Commitment Date of the amount by which it is willing to increase its
Revolving Credit Commitment under the Revolving Credit Facility-B and/or the
amount of its Revolving Credit Commitment under the Revolving Credit Facility-A
it is willing to convert to Revolving Credit Commitments under the Revolving
Credit Facility-B. If the Lenders notify the Agent that they are
willing to so increase or convert their respective Revolving Credit Commitments
by an aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the Lenders
willing to participate therein in such amounts as are agreed between the Company
and the Agent.
(c) Promptly
following each Commitment Date, the Agent shall notify the Company as to the
amount, if any, by which the Lenders are willing to participate in the requested
Commitment Increase. If the aggregate amount by which the Lenders are
willing to participate in any requested Commitment Increase on any such
Commitment Date is less than the requested Commitment Increase, then the Company
may extend offers to one or more Eligible Assignees to participate in any
portion of the requested Commitment Increase that has not been committed to by
the Lenders as of the applicable Commitment Date; provided, however, that the
Revolving Credit Commitment of each such Eligible Assignee shall be in an amount
of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) On
each Increase Date, each Eligible Assignee that accepts an offer to participate
in a requested Commitment Increase in accordance with Section 2.21(b) (an "Assuming Lender")
shall become a Lender party to this Agreement as of such Increase Date and the
Revolving Credit Commitment under the Revolving Credit Facility–B of each
Increasing Lender for such requested Commitment Increase shall be so increased
by such amount (or by the amount allocated to such Lender pursuant to the last
sentence of Section 2.21(b)) as of such Increase Date; provided, however, that the
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) (A)
certified copies of resolutions of the Board of Directors of the Company or the
Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel for
the Company (which may be in-house counsel), in substantially the form of Exhibit D to the
Enabling Amendment;
(ii) an
assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Company and the Agent (each an "Assumption
Agreement"), duly executed by such Eligible Assignee, the Agent and the
Company; and
(iii) confirmation
from each Increasing Lender of the increase in the amount of its Revolving
Credit Commitment under the Revolving Credit Facility – B in a writing
satisfactory to the Company and the Agent.
On each
Increase Date, upon fulfillment of the conditions set forth in the immediately
preceding sentence of this Section 2.21(d), the Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) and the Company, on or
before 1:00 P.M. (New York City time), by telecopier, of the occurrence of the
Commitment Increase to be effected on such Increase Date and shall record in the
Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date. Each Increasing Lender and each
Assuming Lender shall, before 2:00 P.M. (New York City time) on the Increase
Date, make available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, in the case of such Assuming
Lender, an amount equal to such Assuming Lender's ratable portion of the
Borrowings under the Revolving Credit Facility-B then outstanding (calculated
based on its Revolving Credit Commitment as a percentage of the aggregate
Revolving Credit Commitments under the Revolving Credit Facility-B outstanding
after giving effect to the relevant Commitment Increase) and, in the case of
such Increasing Lender, an amount equal to the excess of (i) such Increasing
Lender's ratable portion of the Borrowings Commitment under the Revolving Credit
Facility-B then outstanding (calculated based on its Revolving Credit Commitment
as a percentage of the aggregate Revolving Credit Commitments under the
Revolving Credit Facility-B outstanding after giving effect to the relevant
Commitment Increase) over (ii) such Increasing Lender's ratable portion of the
Borrowings under the Revolving Credit Facility-B then outstanding (calculated
based on its Revolving Credit Commitment (without giving effect to the relevant
Commitment Increase) as a percentage of the aggregate Revolving Credit
Commitments under the Revolving Credit Facility-B (without giving effect to the
relevant Commitment Increase). After the Agent's receipt of such
funds from each such Increasing Lender and each such Assuming Lender, the Agent
will promptly thereafter cause to be distributed like funds to the other Lenders
for the account of their respective Applicable Lending Offices in an amount to
each other Lender such that the aggregate amount of the outstanding Advances
owing to each Lender after giving effect to such distribution equals such
Lender's ratable portion of the Borrowings under the Revolving Credit Facility-B
then outstanding (calculated based on its Revolving Credit Commitment as a
percentage of the aggregate Revolving Credit Commitments under the Revolving
Credit Facility-B outstanding after giving effect to the relevant Commitment
Increase).
ARTICLE III
CONDITIONS
TO EFFECTIVENESS AND LENDING
SECTION
3.01. Conditions Precedent to
Effectiveness of Section 2.01 under the Existing Credit
Agreement. Section 2.01
of the Existing Credit Agreement became effective on October 18, 2005, the
date upon which the following conditions were satisfied (the “Original Effective
Date”):
(a) Except
as disclosed in filings made with the Securities and Exchange Commission, press
releases or other widely distributed disclosure prior to the Original Effective
Date, there shall have occurred no Material Adverse Change since
December 31, 2004, as reflected in the audited financial statements of the
Company and its Consolidated Subsidiaries for the fiscal year ended on such
date.
(b) There
shall exist no action, suit, investigation, litigation or proceeding affecting
the Company or any of its Subsidiaries pending or, to the knowledge of the
Company, threatened before any court, governmental agency or arbitrator that
(i) is reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(c) All
governmental and third party consents and approvals necessary in connection with
the transactions contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders) shall
remain in effect other than any governmental filings required to be made or
approvals obtained in order for any Loan Party to execute, deliver and perform a
Collateral Document with respect to the equity of any non-US Subsidiary, and no
law or regulation shall be applicable in the reasonable judgment of the Lenders
that restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(d) The
Company shall have notified the Agent in writing as to the proposed Original
Effective Date.
(e) The
Company shall have paid all fees of the Agent and the Lenders accrued and
payable on or prior to the Original Effective Date, and all such expenses of the
Agent, including the accrued fees and expenses of counsel to the
Agent.
(f) On the
Original Effective Date, the following statements shall be true and the Agent
shall have received for the account of each Lender a certificate signed by a
duly authorized officer of the Company, dated the Original Effective Date,
stating that:
(i) The
representations and warranties contained in the Loan Documents are correct on
and as of the Original Effective Date, and
(ii) No event
has occurred and is continuing that constitutes a Default.
(g) The Agent
shall have received on or before the Original Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for
the Notes) in sufficient copies for each Lender:
(i) The Notes
to the order of the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(ii) A
security agreement in substantially the form of Exhibit D to the
Existing Credit Agreement, duly executed by the Company and each Person that is
a US Subsidiary Guarantor on the Original Effective Date, together
with:
(A) certificates,
if any, representing the Initial Pledged Equity referred to therein accompanied
by undated stock powers executed in blank and instruments evidencing the Initial
Pledged Debt referred to therein, indorsed in blank, provided, however,
that the receipt of any Initial Pledged Equity for any non-US Subsidiary for
which all required filings with applicable governmental entities have not yet
been made or approval of such governmental entities have not yet been received
shall not be a condition to the Original Effective Date,
(B) acknowledgment
copies or stamped receipt copies of proper financing statements, duly filed on
or before the Original Effective Date under the Uniform Commercial Code of all
jurisdictions that the Agent may deem reasonably necessary or
desirable
in order to perfect and protect the first priority liens and security interests
created under the Security Agreement (other than in respect of the Specified
Collateral), covering the Collateral described in the Security
Agreement,
(C) completed
requests for information, dated on or before the Original Effective Date showing
all financing statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party as debtor, together with copies
of such other financing statements,
(D) the
Intellectual Property Security Agreements covering the registered copyrights
listed on Schedule IV to the Security Agreement, duly executed by the
Company and each Person that is a US Subsidiary Guarantor on the Original
Effective Date,
(E) evidence
of the completion of all other recordings and filings of or with respect to the
Security Agreement that the Agent may deem reasonably necessary or desirable in
order to perfect and protect the security interest created thereunder in
accordance with the terms of the Security Agreement,
(F) evidence
of the insurance required by the terms of the Security Agreement,
and
(G) evidence
that all other action that the Agent may deem reasonably necessary or desirable
in order to perfect and protect the first priority liens and security interests
created under the Security Agreement (other than in respect of the Specified
Collateral) has been taken (including, without limitation, receipt of duly
executed payoff letters, UCC-3 termination statements and landlords' and
bailees' waiver and consent agreements).
(iii) A
security agreement in substantially the form of Exhibit E to the
Existing Credit Agreement, duly executed by Kodak Canada and each Canadian
Subsidiary Guarantor listed on Part B of Schedule I hereto, together
with:
(A) certificates
representing the Initial Pledged Equity referred to therein accompanied by
undated stock powers executed in blank and instruments evidencing the Initial
Pledged Debt referred to therein, endorsed in blank and instruments evidencing
the Initial Pledged Debt owed to Kodak Canada referred to therein, assigned in
blank, and
(B) evidence
that all other action that the Agent may deem reasonably necessary or desirable
in order to perfect and protect the first priority liens and security interests
created under the Canadian Security Agreement (other than in respect of the
Specified Collateral) has been taken (including, without limitation, receipt of
duly executed payoff letters, termination of effective financing statements and
landlords' and bailees' waiver and consent agreements).
(iv) Certified
copies of the resolutions of the Board of Directors, or Executive or Finance
Committee of the Board of Directors, of each Loan Party approving each Loan
Document to which it is a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to each Loan
Document to which it is a party.
(v) A
certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(vi) A
favorable opinion of the general counsel of the Loan Parties, substantially in
the form of Exhibit F to the
Existing Credit Agreement.
(vii) A
favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in form
and substance satisfactory to the Agent.
(h) Except
with respect to the letters of credit deemed issued under this Agreement
pursuant to Section 2.01(c), the Company shall have terminated the
commitments of the lenders and repaid or prepaid (or shall have arranged for the
contemporaneous repayment or prepayment upon the Original Effective Date) all of
the obligations under (i) the Five Year Credit Agreement dated as of
July 13, 2001, as amended, among the Company, the lenders parties thereto
and Citicorp USA, Inc., as administrative agent, (ii) the Second Amended and
Restated Credit Agreement dated as of August 4, 2000, as amended and
restated as of October 12, 2001, and as amended and restated as of
December 31, 2002, as amended, among Kodak Polychrome Graphics LLC and KPG
Finance (Barbados) SaRL, as borrowers, the Company and Sun Chemical Group BV, as
guarantors, the lenders parties thereto, Mizuho Corporate Bank, Ltd., as
arranger and agent, and The Bank of Tokyo-Mitsubishi, Ltd., as syndication
agent, and (iii) the Receivables Purchase Agreement dated as of March 28,
2001, as amended, among EK Funding LLC, as seller, the Company, as servicer,
Ciesco LLC, as conduit purchaser, Citibank, N.A., as committed purchaser, and
Citicorp North America, Inc., as program agent. Each of the Lenders
that is a party to any such credit facility hereby waives, upon execution of
this Agreement, any notice required by said credit facility relating to the
termination of commitments thereunder.
SECTION
3.02. Conditions Precedent to Each
Borrowing and Issuance. The
obligation of each Lender to make an Advance (other than an Advance made by any
Issuing Bank pursuant to Section 2.03(c) or any Lender pursuant to
Section 2.03(c)) on the occasion of each Borrowing and the obligation of
each Issuing Bank to issue a Letter of Credit shall be subject to the conditions
precedent that the Amendment Effective Date shall have occurred and on the date
of such Borrowing or such Issuance the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing, Notice of Issuance and
the acceptance by the applicable Borrower of the proceeds of such Borrowing or
such Issuance shall constitute a representation and warranty by the Company that
on the date of such Borrowing or such Issuance such statements are
true):
(a) the
representations and warranties of each Borrower and each Significant Loan Party
contained in each Loan Document to which it is a party are correct on and as of
such date, before and after giving effect to such Borrowing or such Issuance and
to the application of the proceeds therefrom, as though made on and as of such
date,
(b) no event
has occurred and is continuing, or would result from such Borrowing or such
Issuance or from the application of the proceeds therefrom, that constitutes a
Default;
(c) no
Borrowing Base Deficiency will exist after giving effect to such Borrowing,
issuance or renewal and to the application of the proceeds therefrom;
and
(d) if as a
result of such Borrowing or such Issuance, Excess Availability would be less
than $100,000,000, (a) the Company must demonstrate pro forma compliance with
the Fixed Charge Coverage Ratio and (b) the Lenders shall have received the
Borrowing Base Certificate most recently required to be delivered pursuant to
Section 5.01(h)(ix); and, if such Borrowing Base Certificate shall contain
information with respect to Eligible Receivables not greater than one week old,
the Lenders shall have received information with respect to Eligible Receivables
not greater than one week old; and provided further that the calculations
contained in such Borrowing Base Certificate shall be reasonably satisfactory to
the Agent.
SECTION
3.03 Additional Conditions to
Issuances. In
addition to the other conditions precedent herein set forth, if any Lender
becomes, and during the period it remains, a Defaulting Lender or a Potential
Defaulting Lender, the Issuing Bank will not be required to issue any Letter of
Credit or to amend any outstanding Letter of Credit to increase the face amount
thereof, alter the drawing terms thereunder or extend the expiry date thereof,
unless the Issuing Bank is satisfied that any exposure that would result from a
Defaulted Advance of such Defaulting Lender or Potential Defaulting Lender is
eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or
by Cash Collateralization or a combination thereof satisfactory to the Issuing
Bank.
SECTION
3.04. Determinations Under Enabling Amendment. For
purposes of determining compliance with the conditions specified in the Enabling
Amendment, each Extending Lender shall be deemed to have consented to, approved
or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the date that the Company, by notice to the Lenders, designates as the
proposed Amendment Effective Date, specifying its objection
thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Amendment Effective Date.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations and
Warranties of the Company. The
Company represents and warrants as follows:
(a) Each Loan
Party is duly organized, validly existing and, to the extent such concept is
applicable, in good standing under the laws of the jurisdiction of its
organization.
(b) The
execution, delivery and performance by each Loan Party of each Loan Document to
which it is or is to be party, and the consummation of the transactions
contemplated hereby and thereby, are within such Loan Party’s corporate powers,
have been duly authorized by all necessary corporate action, and do not
(i) contravene such Loan Party’s charter or by-laws, (ii) violate law,
rule, regulation (including, without limitation, with respect to the
Borrowers, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any material contractual restriction or,
to such Loan Party’s knowledge, any other contractual restriction, binding on or
affecting such Loan Party or (iv) except for the Liens created under the
Loan Documents, result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of its
Subsidiaries.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Loan Document to which it is or is to be a
party, (ii) other than as set forth in Section 6(m) of the Security
Agreement or Section 6(m) of the Canadian Security Agreement, the grant by
any Loan Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) other than in respect of the Specified Collateral as set forth in
Section 6(m) of the Security Agreement or Section 6(m) of the Canadian
Security Agreement, the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof) or
(iv) the exercise by the Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents.
(d) This
Agreement has been, and each other Loan Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of each
Loan Party party thereto enforceable against such Loan Party in accordance with
their respective terms, except as enforceability may be affected by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors’ rights generally and by general principles
of equity, whether enforcement is sought in a proceeding in equity or at
law.
(e) The
Consolidated statement of financial position of the Company and its Consolidated
Subsidiaries as at December 31, 2008, and the related Consolidated
statement of earnings and Consolidated statement of cash flows of the Company
and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by
an opinion of PricewaterhouseCoopers LLP, independent public accountants, copies
of which have been furnished to each Lender, fairly present, the Consolidated
financial condition of the Company and its Consolidated Subsidiaries as at such
date and the Consolidated statement of earnings and Consolidated statement of
cash flows of the Company and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with generally accepted accounting principles
consistently applied.
Since
December 31, 2008, there has been no Material Adverse Change except as
disclosed in filings made with the Securities and Exchange Commission, press
releases, or otherwise disclosed to the Lenders prior to March 20,
2009.
(f) There is
no pending or, to the knowledge of the Company, threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Company or any of its Subsidiaries before
any court, governmental agency or arbitrator that (i) is reasonably likely
to have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document or the
consummation of the transactions contemplated hereby.
(g) Neither
Borrower is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System), and no proceeds
of any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
(h) Neither
Borrower is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as
amended.
(i) The
Company and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which are not reasonably expected to have a Material
Adverse Effect (the “Intellectual
Property”). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Company know of any valid basis for any such claim, except, in either case, for
such claims that in the aggregate are not reasonably expected to have a Material
Adverse Effect. The use of such Intellectual Property by the Company
and its Subsidiaries does not infringe on the rights of any Person, except for
such claims and infringements that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
(j) (i) No
ERISA Event has occurred or is reasonably expected to occur with respect to any
Plan that has resulted in or is reasonably expected to result in a material
liability of any Loan Party or any ERISA Affiliate.
(ii) Neither
any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan that in the aggregate
could reasonably be expected to have a Material Adverse Effect.
(iii) Neither
any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(k) The
operations and properties of the Company and each of its Consolidated
Subsidiaries comply in all material respects with all applicable Environmental
Laws and Environmental Permits, all past non-compliance with such Environmental
Laws and Environmental Permits has been resolved without ongoing obligations or
costs that have had or are reasonably expected to have a Material Adverse
Effect, and no circumstances exist that are reasonably likely to (A) form
the basis of an Environmental Action against the Company or any of its
Subsidiaries or any of their properties that is reasonably expected to have a
Material Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that is reasonably expected to have a Material Adverse
Effect.
(l) The
Company and each of its Subsidiaries has good and marketable fee simple title to
or valid leasehold interests in all of the real property owned or leased by the
Company or such Subsidiary and
good
title to all of their personal property, except where the failure to hold such
title or leasehold interests, individually or in the aggregate is not reasonably
expected to have a Material Adverse Effect. The Company and its
Subsidiaries enjoy peaceful and undisturbed possession under all of their
respective leases except where the failure to enjoy such peaceful and
undisturbed possession, individually or in the aggregate, is not reasonably
expected to have a Material Adverse Effect.
(m) All
factual information, taken as a whole, furnished by or on behalf of the Company
and its Subsidiaries, taken as a whole, in writing to the Agents or any Lender
on or prior to the Amendment Effective Date, for purposes of this Agreement and
all other such factual information taken as a whole, furnished by the Company on
behalf of itself and its Subsidiaries, taken as a whole, in writing to the
Agents or any Lender pursuant to the terms of this Agreement will be, true and
accurate in all material respects on the date as of which such information is
dated or furnished and not incomplete by knowingly omitting to state any
material fact necessary to make such information, taken as a whole, not
misleading at such time, provided, however, that with
respect to any projected financial information or forward-looking statements,
the Company represents only that such information was prepared in good faith
based upon assumptions, and subject to such qualifications, believed to be
reasonable at the time.
(n) All
filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral (other than in respect of the Specified
Collateral as set forth in Section 6(m) of the Security Agreement and
Section 6(m) of the Canadian Security Agreement) created under the
Collateral Documents have been duly made or taken and are in full force and
effect, and the Collateral Documents create in favor of the Agent for the
benefit of the Secured Parties a valid and, together with such filings and other
actions, perfected first priority security interest in the Collateral (other
than the Specified Collateral), securing the payment of the Secured Obligations
(as defined in the Security Agreement), and all filings and other actions
necessary or desirable to perfect and protect such security interest have been
duly taken. The Loan Parties are the legal and beneficial owners of
the Collateral free and clear of any Lien, except for the liens and security
interests created or permitted under the Loan Documents.
(o) Each
Borrower is, individually and together with its Subsidiaries,
Solvent.
(p) Set forth
on Part A of Schedule II hereto is a complete and accurate list of all
direct and indirect Subsidiaries of the Company that are organized under the
laws of a state of the United States of America, and set forth on Part C of
Schedule II hereto is a complete and accurate list of all Material
Subsidiaries of each Borrower, showing, in each case, as of the Amendment
Effective Date (as to each such Subsidiary) the jurisdiction of its formation,
the number of shares, membership interests or partnership interests (as
applicable) of each class of its equity interests authorized, and the number
outstanding, on the Amendment Effective Date and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by the applicable
Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the Amendment
Effective Date. All of the outstanding equity interests in each Loan
Party’s Subsidiaries have been validly issued, are fully paid and non-assessable
and, except as otherwise provided herein, are owned by such Loan Party or one or
more of its Subsidiaries, other than director’s qualifying shares or similar
minority interests required under the laws of the Material Subsidiary’s
formation, free and clear of all Liens, except those created under the
Collateral Documents.
ARTICLE V
COVENANTS
OF THE COMPANY
SECTION
5.01. Affirmative
Covenants. So
long as any Advance or any other payment obligation of any Loan Party of which
the Company has knowledge under any Loan Document shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Company will:
(a) Compliance with
Laws. Comply,
and cause each of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, Environmental Laws and the PATRIOT
Act, except where such non-compliance is not reasonably expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay
and discharge, and cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that neither
the Company nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Maintenance of
Insurance. Maintain,
and cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Company or such
Subsidiary operates; provided, however, that the
Company and its Subsidiaries may self-insure to the extent consistent with
prudent business practice.
(d) Preservation of Corporate
Existence. Preserve
and maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided, however, that the
Company and its Subsidiaries may consummate any amalgamation, merger or
consolidation permitted under Section 5.02(b) and provided further that neither
the Company nor any of its Subsidiaries shall be required to preserve any right
or franchise if the Company determines that the preservation thereof is no
longer desirable in the conduct of the business of the Company or such
Subsidiary, as the case may be, and that the loss thereof is not reasonably
expected to have a Material Adverse Effect.
(e) Visitation
Rights. (i) At any reasonable time, on reasonable
notice and from time to time, permit the Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of, the
Company and any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Company and any of its Subsidiaries with any of their officers
or directors and with their independent certified public accountants, provided
that all such information is subject to the provisions of
Section 9.08. At any time prior to the occurrence of a
continuing Event of Default, the right of the Agent and any of the Lenders to
visit the property of the Company and any of its Subsidiaries shall be subject
to reasonable rules and restrictions of the Company for such access, and such
visit shall not unreasonably interfere with the ongoing conduct of the business
of the Company and its Subsidiaries at such properties.
(ii) At any
reasonable time and from time to time (except as may be limited by subsections
(iii) and (iv) below) during regular business hours, upon reasonable notice,
permit the Agent or any of the Lenders or any agents or representatives thereof
(including any consultants, accountants, lawyers and appraisers retained by the
Agent) to visit the properties of the Company and its Subsidiaries to conduct
evaluations, appraisals, environmental assessments and ongoing maintenance and
monitoring in connection with the Company’s computation of the Borrowing Base
and the assets included in the Borrowing Base and such other assets and
properties of the Company or its Subsidiaries as the Agents may require, and to
monitor the Collateral and all related systems.
(iii) Permit
field audits and appraisals of Collateral other than real-estate Collateral,
provided that
such audits and appraisals may be conducted (A) so long as the Excess
Availability is at least $100,000,000, not more than twice per year, and (B) at
any time at the reasonable request of the Agent if the Excess Availability is
less than $100,000,000 or upon the occurrence and continuance of a Default;
and
(iv) Permit
appraisals of real-estate Collateral, provided that such
appraisals may be conducted (A) so long as the Excess Availability is at least
$100,000,000, not more than once per year and (B) at any time at the reasonable
request of the Agent if the Excess Availability is less than $100,000,000 or
upon the occurrence and continuance of a Default.
(f) Keeping of
Books. Keep
and maintain proper books of record and account on a Consolidated basis for
Company and its Subsidiaries in conformity with generally accepted accounting
principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain
and preserve, and cause each of its Subsidiaries to maintain and preserve in all
material respects, all of its properties that are used or useful in the conduct
of its business in good working order and condition, ordinary wear and tear
excepted, except where the failure to so maintain or preserve is not reasonably
expected to have a Material Adverse Effect.
(h) Reporting
Requirements. Furnish
to the Lenders:
(i) as soon
as available and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Company, the Consolidated statement of
financial position of the Company and its Consolidated Subsidiaries as of the
end of such quarter and Consolidated statements of earnings and cash flows of
the Company and its Consolidated Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter, duly
certified by the chief financial officer of the Company as having been prepared
in accordance with generally accepted accounting principles subject to normal
year-end audit adjustments and other items, such as footnotes, omitted in
interim statements, and certificates of a Responsible Officer of the Company as
to compliance with the terms of this Agreement and setting forth in reasonable
detail the calculations necessary to demonstrate compliance with
Section 5.03, provided that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to GAAP as
applied in the preparation of the financial statements delivered pursuant to
Section 4.01(e);
(ii) as soon
as available and in any event within 90 days after the end of each fiscal year
of the Company, a copy of the annual audit report for such year for the Company
and its Consolidated Subsidiaries, containing the Consolidated statement of
financial position of the Company and its Consolidated Subsidiaries as of the
end of such fiscal year and Consolidated statements of earnings and cash flows
of the Company and its Consolidated Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required Lenders by registered
independent public accountants reasonably acceptable to the Required Lenders and
certificates of a Responsible Officer of the Company as to compliance with the
terms of this Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to GAAP as
applied in the preparation of the financial statements delivered pursuant to
Section 4.01(e);
(iii) as soon
as possible and in any event within five days after the Company has knowledge of
the occurrence of each Default continuing on the date of such statement, a
statement of a Responsible Officer of the Company setting forth details of such
Default and the action that the Company has taken and/or proposes to take with
respect thereto;
(iv) promptly
after the sending or filing thereof, copies of all reports that the Company
sends to any of its securityholders, and copies of all reports and registration
statements that the Company or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
(v) notice of
all actions and proceedings before any court, governmental agency or arbitrator
affecting the Company or any of its Subsidiaries of the type which would have
been required to be disclosed under Section 4.01(f), promptly after the
later of the commencement thereof or knowledge that such actions or proceedings
are reasonably likely to be of a type which would have been required to be
disclosed under Section 4.01(f);
(vi) as soon
as available and in any event no later than 45 days after the end of each fiscal
quarter, amended or supplemented Schedules setting forth such information as
would be required to make the representations set forth in Section 6(a),
(c), (d), (h), (i), (l) and (p)(iii) of the
Security
Agreement and Section 6(a), (c), (d), (h), (i), (l) and (p)(iii) of the
Canadian Security Agreement true and correct as if the Schedules referenced
therein were delivered on such date;
(vii) such
other information respecting the Company or any of its Subsidiaries as any
Lender through the Agent may from time to time reasonably request;
(viii) As soon
as available, and in any event no later than 45 days after the end of each
fiscal year of the Company, a reasonably detailed consolidated budget for the
fiscal year immediately following such fiscal year on a quarterly basis, and on
an annual basis for each year thereafter through the Extension Termination Date
(including a projected Consolidated balance sheet of the Company and its
Subsidiaries as of the end of the following fiscal year), the related projected
Consolidated statements of cash flow and income for such fiscal year and the
projected Excess Availability (detailing the respective Borrowing Base and the
amount of aggregate Advances) expected as of the end of each month during such
fiscal year (collectively, the “Projections”), which
Projections shall be accompanied by a certificate of a Responsible Officer of
the Company stating that such Projections are based on then reasonable estimates
and then available information and assumptions; it being understood that the
Projections are made on the basis of the Company’s then current good faith views
and assumptions believed to be reasonable when made with respect to future
events, and assumptions that the Company believes to be reasonable as of the
date thereof and further being understood that projections, including the
Projections, are subject to significant uncertainties and contingencies, many of
which are beyond the Company’s control, inherently unreliable and that actual
performance may differ materially from the Projections and no assurance is given
by the delivery of such Projections or otherwise that the Projections will be
realized.
(ix) A
Borrowing Base Certificate substantially in the form of Exhibit E as of
the date required to be delivered or so requested, in each case with supporting
documentation (including, without limitation, the documentation described in
Schedule 1 to Exhibit E) shall
be furnished to the Agent: (i) as soon as available and in any event
prior to the Amendment Effective Date with respect to such information as the
Agent may reasonably require in respect of Eligible Equipment, Eligible
Inventory, Eligible Real Property and Eligible Receivables included in the
Borrowing Base on the Amendment Effective Date and, from time to time thereafter
such other information as the Agent may reasonably require to include additional
items of Equipment, Inventory, Real Property or Receivables in the Borrowing
Base, (ii)(A) after the Amendment Effective Date, on or before the 15th day
following the end of each fiscal month other than the last fiscal month of each
fiscal quarter, and on or before the 21st day of
the last fiscal month in each fiscal quarter, which monthly Borrowing Base
Certificate shall reflect the Collateral contained in the Borrowing Base updated
as of the end of each such month and (B) in addition to such monthly
Borrowing Base Certificates, (x) upon the occurrence and continuance of an
Event of Default or if Excess Availability is less than $100,000,000, on or
before the third Business Day following the end of each week, which weekly
Borrowing Base Certificate shall reflect the Collateral included in the
Borrowing Base updated as of the immediately preceding Thursday; provided that if
Excess Availability is equal to or greater than $100,000,000 for thirty
consecutive days, such Borrowing Base Certificate shall be delivered pursuant to
clause (ii)(A) herein and (y) at the option of the Borrower, weekly
updates of Eligible Receivables, certified by a Responsible Officer, and
(iii) if requested by the Agent at any other time when the Agent reasonably
believes that the then existing Borrowing Base Certificate is materially
inaccurate, as soon as reasonably available after such request, in each case
with supporting documentation as the Extending Lenders may reasonably request
(including without limitation, the documentation described on Schedule 1 to
Exhibit E).
(x) (A)
Promptly and in any event within 20 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has occurred, a
statement of a Responsible Officer of such Loan Party describing such ERISA
Event and the action, if any, that such Loan Party or such ERISA Affiliate has
taken and proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with
respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(xi) Promptly
and in any event within two business days after receipt thereof by any Loan
Party or any ERISA Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to administer any
Plan.
(xii) Promptly
and in any event within five business days after receipt thereof by any Loan
Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the meaning of
Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability
incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (A) or (B).
(i) Covenant to Guarantee
Obligations and Give Security. Upon
(x) the request of the Agent following the occurrence and during the continuance
of a Default, (y) the formation or acquisition of any new direct or
indirect Material Subsidiaries owned directly by any Borrower or any new
Subsidiaries organized under the laws of any state of the United States of
America or Canada owned directly or indirectly by either Borrower or
(z) the acquisition of any property by any Loan Party, and such property,
in the judgment of the Agent (as to which judgment the Agent has given notice to
the Company), shall not already be subject (other than in respect of the
Specified Collateral) to a perfected first priority security interest in favor
of the Agent for the benefit of the Secured Parties, then in each case at the
Company’s expense:
(i) in
connection with the formation or acquisition of a Subsidiary organized under the
laws of a state of the United States of America or Canada owned directly or
indirectly by the Company or Kodak Canada that (A) is not a CFC (unless such
Subsidiary is owned by Kodak Canada), (B) is not a “Restricted Subsidiary” (as
defined in the Indenture) or (C) is not a Person having total assets of less
than $10,000,000, within 30 days after such formation or acquisition, cause
each such Subsidiary, duly execute and deliver to the Agent a guaranty
supplement, in the form of Exhibit D
hereto, guaranteeing the applicable Guaranteed Obligations,
(ii) within
45 days after (A) such request or acquisition of property other than any
“Principal Property” (as defined in the Indenture) by any Loan Party, duly
execute and deliver, and cause each Loan Party to duly execute and deliver, to
the Agent such additional pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other security
agreements as specified by, and in form and substance reasonably satisfactory
to, the Agent, securing payment of all the obligations of such Loan Party under
the Loan Documents and constituting Liens on all such properties and
(B) such formation or acquisition of any new Material Subsidiary, duly
execute and deliver and cause each Loan Party acquiring equity interests in such
Subsidiary to duly execute and deliver to the Agent pledges, assignments and
security agreement supplements related to such equity interests as specified by,
and in form and substance satisfactory to, the Agent, securing payment of all of
the obligations of such Loan Party under the Loan Documents; provided that
(A) the stock of any Restricted Subsidiary shall not be required to be
pledged, (B) the stock of any Subsidiary held by a CFC shall not be required to
be pledged and (C) if such new property is equity interests in a CFC (unless
such Subsidiary is owned by Kodak Canada), no more than 65% of the equity
interests in such CFC shall be pledged in favor of the Secured
Parties,
(iii) within
60 days after such request, formation or acquisition, take, and cause each
Loan Party and each newly acquired or newly formed direct Material Subsidiary
(other than any Subsidiary that is a CFC (unless such Subsidiary is owned by
Kodak Canada) or a Restricted Subsidiary) to take, whatever action (including,
without limitation, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title documents) may be
necessary or advisable in the reasonable opinion of the Agent to vest in the
Agent (or in any representative of the Agent designated by it) valid and
subsisting Liens on the
properties
purported to be subject to the pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and security
agreements delivered pursuant to this Section 5.01(i), enforceable against
all third parties in accordance with their terms (other than in respect of the
Specified Collateral as set forth in Section 6(m) of the Security Agreement
and Section 6(m) of the Canadian Security Agreement),
(iv) within
60 days after such request, formation or acquisition, deliver to the Agent,
upon the request of the Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Agent and the other Secured Parties, of
counsel for the Loan Parties reasonably acceptable to the Agent as to
(1) such guaranties, guaranty supplements, pledges, assignments, security
agreement supplements, intellectual property security agreement supplements and
security agreements described in clauses (i), (ii) and (iii) above being
legal, valid and binding obligations of each Loan Party party thereto
enforceable in accordance with their terms and as to the matters contained in
clause (iii) above, subject to customary exceptions, (2) such
recordings, filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such assets, and (3) such other matters as the
Agent may reasonably request, consistent with the form of opinion attached as
Exhibit D
to the Enabling Amendment.
(v) at any
time and from time to time, promptly execute and deliver, and cause each Loan
Party and each newly acquired or newly formed direct Material Subsidiary (other
than any Subsidiary that is a CFC (unless such Subsidiary is owned by Kodak
Canada) or a Restricted Subsidiary) to execute and deliver, any and all further
instruments and documents and take, and cause such Subsidiary to take, all such
other action as the Agent may deem reasonably necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens of,
such guaranties, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security
agreements.
(j) Further
Assurances. (i) Promptly upon the reasonable
request by the Agent, or any Lender through the Agent, correct, and cause each
of the other Loan Parties promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly
upon the reasonable request by the Agent, or any Lender through the Agent, do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, pledge agreements, assignments,
financing statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other instruments as the
Agent, or any Lender through the Agent, may reasonably require from time to time
in order to (A) carry out more effectively the purposes of the Loan
Documents, (B) to the fullest extent permitted by applicable law and the
terms of this Agreement and the Collateral Documents, subject any Loan Party’s
properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (C) perfect and maintain
the validity, effectiveness and priority of any of the Collateral Documents and
any of the Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively unto the
Secured Parties the rights granted or now or hereafter intended to be granted to
the Secured Parties under any Loan Document or under any other instrument
executed in connection with any Loan Document to which any Loan Party or any of
its Subsidiaries formed or acquired after the Amendment Effective Date is or is
to be a party, and cause each of its Subsidiaries to do so.
(k) Transactions with
Affiliates. Conduct,
and cause each of its Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Company or such Subsidiary than
it would obtain in a comparable arm’s-length transaction (determined in the
reasonable judgment of the Company) with a Person not an Affiliate, other than
(i) intercompany transactions among the Company and its wholly-owned
Subsidiaries, (ii) fees and other benefits to non-officer directors of the
Company and its Subsidiaries and (iii)
employment,
severance and other similar arrangements and employee benefits with officers and
employees of the Company and its Subsidiaries.
(l) Maintenance of Cash
Management System. Establish
and maintain a cash management system on terms reasonably acceptable to the
Agent in accordance with Section 2.18 of this
Agreement. Continue to maintain one or more Concentration Accounts to
be used by each Borrower as its principal concentration account for day-to-day
operations conducted by such Borrower.
(m) Field Audits and Appraisals
of Collateral. Use
commercially reasonable efforts to facilitate the completion of a field
examination of the Collateral of the Company and its Subsidiaries promptly after
the Amendment Effective Date.
(n) Eligible Real
Property. As
to any real property intended to be Eligible Real Property, and prior to the
inclusion of such real property in the Borrowing Base, the Company shall
deliver, or cause to be delivered, the Real Property Deliverables.
SECTION
5.02. Negative
Covenants. So
long as any Advance or any other payment obligation of any Loan Party of which
the Company has knowledge under any Loan Document shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Company will not:
(a) Liens. Create
or suffer to exist, or permit any of its Subsidiaries to create or suffer to
exist, any Lien on or with respect to any of its properties, whether now owned
or hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, other than the following, provided that any Lien
permitted by any clause below shall be permitted under this Section 5.02(a),
notwithstanding that such Lien would not be permitted by any other
clause:
(i) Permitted
Liens,
(ii) Liens
created under the Loan Documents,
(iii) Liens
upon or in any real property or equipment acquired or held by the Company or any
Subsidiary in the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition or improvement of such property or equipment
(including any Liens placed on such property or equipment within 180 days after
the acquisition of such property or equipment), or Liens existing on such
property or equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to finance
the acquisition of such property) or extensions, renewals or replacements of any
of the foregoing for the same or a lesser amount, provided, however, that no such
Lien shall extend to or cover any properties of any character other than the
real property or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not theretofore subject to
the Lien being extended, renewed or replaced, provided further that the
aggregate principal amount of the indebtedness secured by the Liens referred to
in this clause (iii) shall not exceed $200,000,000 at any time
outstanding,
(iv) the Liens
existing on the Amendment Effective Date and described on Schedule 5.02(a)
hereto,
(v) Liens on
property of a Person existing at the time such Person is acquired by,
amalgamated, merged into or consolidated with the Company or any Subsidiary of
the Company or becomes a Subsidiary of the Company; provided that such
Liens were not created in contemplation of such amalgamation, merger,
consolidation or acquisition and do not extend to any assets other than those of
the Person so merged or amalgamated into or consolidated with the Company or
such Subsidiary or acquired by the Company or such Subsidiary,
(vi) Liens
arising under leases that have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, in an aggregate
principal amount not to exceed $200,000,000 at any time
outstanding,
(vii) other
Liens on assets not consisting of Collateral which secure Debt, or judgments
pending appeal, in an aggregate principal amount not to exceed $200,000,000 at
any time outstanding, provided that such
Liens shall not encumber (i) “Principal Properties” as such term is defined in
the Indenture or (ii) any capital stock or indebtedness of any “Restricted
Subsidiary” (as defined in the Indenture),
(viii) Liens on
assets of Subsidiaries organized under the laws of any jurisdiction outside of
the United States or Canada which secure Debt, or judgments pending appeal, in
an aggregate principal amount not to exceed $25,000,000 at any time outstanding,
and
(ix) the
replacement, extension or renewal of any Lien permitted by clause (iii) or
(iv) above upon or in the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured thereby.
(b) Mergers. Merge,
amalgamate or consolidate with or into any Person, or permit any of its Material
Subsidiaries to do so, provided that, notwithstanding the foregoing (i) any
Material Subsidiary of the Company may merge, amalgamate or consolidate with or
into the Company or any other Subsidiary of the Company, (ii) any Subsidiary of
the Company that is a Loan Party may merge, amalgamate or consolidate with or
into the Company or any other Loan Party, (iii) any Subsidiary of the Company
that is not a Loan Party may merge, amalgamate or consolidate with or into the
Company or any other Subsidiary of the Company, (iv) any Material Subsidiary may
merge, amalgamate or consolidate with any other Person so long as such Material
Subsidiary is the surviving corporation and (v) the Company may merge,
amalgamate or consolidate with any other Person so long as the Company is the
surviving corporation, provided, in each
case, that no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) Accounting
Changes. Make
or permit, or permit any of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as required or permitted by
generally accepted accounting principles.
(d) Debt. Create
or suffer to exist, or permit any of its Subsidiaries to create or suffer to
exist, any Debt other than the following, provided that any Debt permitted by
any clause below shall be permitted under this Section 5.02(d), notwithstanding
that such Debt would not be permitted by any other clause:
(i) Debt owed
to the Company or to a Consolidated Subsidiary of the Company,
(ii) Debt
existing on the Amendment Effective Date and described on Schedule 5.02(d)
hereto (the “Existing
Debt”), and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt, provided that the
principal amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such extension,
refunding or refinancing, the direct and contingent obligors therefor shall not
be changed, other than for changes necessitated by changes in the organizational
structure of the Company and its Subsidiaries, as a result of or in connection
with such extension, refunding or refinancing and that such refinancing or
refinancing Debt shall mature on a date that is no earlier than 90 days after
the Initial Termination Date or the Extension Termination Date,
(iii) Debt
secured by Liens of the type described in and to the extent permitted by
Section 5.02(a)(iii),
(iv) Debt of a
Person existing at the time such Person is amalgamated, merged into or
consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of
the
Company; provided that such
Debt was not created in contemplation of such amalgamation, merger,
consolidation or acquisition,
(v) Debt
arising under the Loan Documents,
(vi) Debt
incurred by any Subsidiary organized, or substantially all of the business of
which is conducted, in the People’s Republic of China in an aggregate amount not
to exceed $200,000,000 at any time outstanding,
(vii) Debt
incurred by Kodak International Finance Limited, a company organized and
existing under the laws of England, (x) in connection with short term working
capital needs in an aggregate amount not to exceed $100,000,000 at any time
outstanding and (y) consisting of Hedge Agreement Obligations entered into in
the ordinary course of business to protect the Company and its Subsidiaries
against fluctuations in interest or exchanges rates,
(viii) other
Debt (whether secured or unsecured) to the extent such Debt would be permitted
to be secured under Section 5.02(a)(vii), provided that on the
date of incurrence thereof, the Company shall be in pro forma compliance with
the Fixed Charge Coverage Ratio,
(ix) other
Debt (whether secured or unsecured) incurred by Subsidiaries organized under the
laws of any jurisdiction outside of the United States or Canada to the extent
such Debt would be permitted to be secured under
Section 5.02(a)(viii),
(x) endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business,
(xi) Debt
which exists or may exist under the Secured Agreements in existence from time to
time,
(xii) Debt in
an aggregate principal amount not to exceed $25,000,000 at any time
outstanding,
(xiii) Debt that
is subordinated to the obligations of the Company under the Loan Documents on
terms that are reasonably satisfactory to the Agent and the Required Lenders
provided that
(i) the aggregate principal amount of such Debt shall not exceed $100,000,000 at
any time outstanding, (ii) after giving effect thereto, the Company shall be in
pro forma compliance with the Fixed Charge Coverage Ratio and (iii) Excess
Availability shall equal or exceed $100,000,000 at the time of issuance of such
Debt,
(xiv) unsecured
Debt consisting of guarantees of amounts owing by customers of the Company under
equipment and vendor financing programs in an aggregate amount not to exceed
$25,000,000 at any time outstanding,
(xv) Debt in
an amount equal to the aggregate amount of the repurchase price or redemption
price payable on of the Convertible Notes from time to time, and
(xvi) unsecured
Debt in connection with surety bonds, guarantees and letters of credit for
customs and excise taxes, value added taxes, insurance and environmental
liabilities, rental expenses, tenders and bids and other obligations of the like
incurred in the ordinary course of business in an aggregate principal amount not
to exceed $25,000,000 at any time outstanding.
(e) Sales,
etc. Sell,
convey, transfer, lease or otherwise dispose of, or permit any of its
Subsidiaries to sell, convey, transfer, lease or otherwise dispose of, any
assets, or grant any option or other right to purchase, lease or otherwise
acquire, or permit any of its Subsidiaries to grant any option or other right to
purchase, lease or otherwise acquire, any assets, other than the following,
provided that such action permitted by any clause below shall be permitted under
this Section 5.02(e), notwithstanding that such action would not be permitted by
any other clause:
(i)sales of Inventory
in the ordinary course of its business and the granting of any option or other
right to purchase, lease or otherwise acquire the Inventory in the ordinary
course of its business,
(ii) in a
transaction authorized by Section 5.02(b),
(iii) sales of
obsolete or worn-out property or property no longer used or useful,
(iv) sales,
transfers or other dispositions of assets among the Company and the US
Subsidiary Guarantors or among Kodak Canada and the Canadian Subsidiary
Guarantors, and
(v) other
sales, transfers or other dispositions of assets, provided, that, (x)
if such assets constitute Collateral that is included in the Borrowing Base, the
Company shall provide a Borrowing Base Certificate to the Agent reflecting the
revised Borrowing Base giving effect to such sale, conveyance, transfer, lease
or other disposition and (y) if the Net Cash Proceeds of any sale, lease or
other disposition of assets in accordance with this Section 5.02(e)(v)(y)
shall exceed $25,000,000, the Company shall provide a certificate to the Agent
indicating whether such assets constitute Collateral that is included in the
Borrowing Base.
(f) Payment Restrictions
Affecting Subsidiaries. Directly
or indirectly, enter into or suffer to exist, or permit any of its Subsidiaries
to enter into or suffer to exist, any agreement or arrangement limiting the
ability of any of its Subsidiaries to declare or pay dividends or other
distributions in respect of its equity interests or repay or prepay any Debt
owed to, make loans or advances to, or otherwise transfer assets to or make
investments in, the Company or any Subsidiary of the Company (whether through a
covenant restricting dividends, loans, asset transfers or investments, a
financial covenant or otherwise), except (i) as provided in this Agreement, (ii)
any agreement or instrument evidencing Debt existing on the Amendment Effective
Date, (iii) any agreement in effect at the time a Person first became a
Subsidiary of the Company, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Subsidiary of the Company;
(iv) any agreement evidencing debt permitted by Section 5.02(a)(iii)
that imposes restrictions on the property acquired; (v) by reason of
customary provisions restricting assignments, licenses, subletting or other
transfers contained in leases, licenses, joint venture agreements, purchase and
sale or merger agreements and other similar agreements entered into in the
ordinary course of business so long as such restrictions do not extend to assets
other than those that are the subject of such lease, license or other agreement;
or (vi) in securitization transactions to the extent set forth in the
documents evidencing such transactions so long as such restrictions do not
extend to assets other than those that are the subject of such securitization
transactions.
(g) Change in Nature of
Business. Make,
or permit any of its Material Subsidiaries to make, any material change in the
nature of the business as carried on or as contemplated to be carried on by the
Company and its Subsidiaries taken as a whole at the Amendment Effective
Date.
(h) Dividends,
Etc. Declare
or make any dividend payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any class of
capital stock of the Company, or purchase, redeem or otherwise acquire for value
(or permit any of its Subsidiaries to do so) any shares of any class of capital
stock of the Company or any warrants, rights or options to acquire any such
shares, now or hereafter outstanding, except that the Company may (i) declare
and make any dividend payment or other distribution payable in common stock of
the Company, (ii) purchase, redeem or otherwise acquire shares of its common
stock or warrants, rights or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new shares of its
common stock, (iii) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or warrants,
rights or options to acquire any such shares for cash so long as (A) no Default
shall have occurred and be continuing or would result therefrom, (B) the Excess
Availability is greater than $100,000,000 after giving effect to such dividend
or distribution and (C) after giving effect thereto, the Company shall be in pro
forma compliance with the Fixed Charge Coverage Ratio and (iv) declare or pay
cash dividends to its stockholders and purchase, redeem or otherwise acquire
shares of its capital stock or warrants, rights or options to acquire any such
shares for cash in an aggregate amount not to exceed $150,000,000 in any year so
long as (A) no Default shall have occurred and be continuing or would
result
therefrom,
(B) the Company and its Subsidiaries have cash or Cash Equivalents on hand in an
amount not less than $1,000,000,000 and (C) no Advances are then
outstanding.
(i) Investments in Other
Persons. Make,
or permit any of its Subsidiaries to make, any Investment in any Person, except
the following, provided that any Investment permitted by any clause below shall
be permitted under this Section 5.02(i), notwithstanding that such Investment
would not be permitted by any other clause:
(i) (A) Investments
by the Company and its Subsidiaries in their Subsidiaries outstanding on the
Amendment Effective Date, (B) additional Investments by the Company and its
Subsidiaries in the Company or the US Subsidiary Guarantors, (C) additional
Investments by Kodak Canada and its Subsidiaries in Kodak Canada or the Canadian
Subsidiary Guarantors, (D) additional Investments by Subsidiaries of the Company
that are not Loan Parties in other Subsidiaries that are not Loan Parties and
(E) additional Investments by the Loan Parties in Subsidiaries that are not Loan
Parties, provided that (i) no
Default shall have occurred and be continuing or would result from such
Investments and provided further that, if the
Excess Availability shall be less than $100,000,000 after giving effect to any
such Investment and the Company shall not be in pro forma compliance with the
Fixed Charge Coverage Ratio after giving effect to such Investments, the
aggregate amount of such Investments permitted under this clause (i)(E)
plus the aggregate amount of Investments made in accordance with
clause (viii) below shall not exceed $25,000,000;
(ii) loans and
advances to employees in the ordinary course of the business of the Company and
its Subsidiaries as presently conducted in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding;
(iii) Investments
by the Company and its Subsidiaries in cash and Cash Equivalents;
(iv) Investments
existing on the Amendment Effective Date and Investments of up to $100,000,000
in the People’s Republic of China for the previously announced digital
computer-to-plate factory;
(v) Investments
in Hedge Agreements designed to hedge against fluctuations in interest rates,
foreign exchange rates or in commodity prices incurred in the ordinary course of
business and consistent with existing business practice;
(vi) Investments
received in settlement of claims against another Person in connection with (A) a
bankruptcy proceeding against such Person, (B) accounts receivable arising from
or trade credit granted to, in the ordinary course of business, a financially
troubled account debtor and (C) disputes regarding intellectual property
rights;
(vii) Investments
in an aggregate amount not to exceed $200,000,000 (of which $125,000,000 may be
made in 2009) in connection with the Company’s Imaging Sensors, Online Imaging
Services (KODAK Gallery), Electrophotographic Solutions and Organic Light
Emitting Diodes lines of business, provided that (A) no
Default shall have occurred and be continuing or would result therefrom, (B) the
Company and its Subsidiaries have cash or Cash Equivalents on hand in an amount
not less than $1,000,000,000 and (C) no Advances are then outstanding; provided further that the
value of any common equity of the Company used as consideration in connection
with any such Investment shall not be included in calculating the amount of such
Investment,
(viii) Investments
by the Company and its Subsidiaries not otherwise permitted under this
Section 5.02(i), provided that no
Default shall have occurred and be continuing or would result from such
Investments and provided further that, if the
Excess Availability shall be less than $100,000,000 after giving effect to any
such Investment and the Company shall not be in pro forma compliance with the
Fixed Charge Coverage Ratio after giving effect to such Investments, the
aggregate amount of such Investments permitted under this clause (viii)
plus the aggregate
amount of
Investments made in accordance with clause (i)(D) above shall not exceed
$25,000,000; provided, further, that, with
respect to each Investment made pursuant to this
clause (viii):
(A) such
Investment shall not include or result in any contingent liabilities that could
reasonably be expected to be material to the business, financial condition or
operations of the Company and its Subsidiaries, taken as a whole (as determined
in good faith by the board of directors (or persons performing similar
functions) of the Company, if the board of directors is otherwise approving such
transaction, or, in each other case, by the chief executive or financial officer
of the Company); and
(B) any
determination of the amount of such Investment shall include all cash and
noncash consideration (including, without limitation, the fair value, determined
in accordance with generally accepted accounting principles, of all equity
interests (other than common equity in the Company) issued or transferred to the
sellers of such investment, all earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the sellers of such investment,
all write-downs of property and assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Company and its Subsidiaries
in connection with such Investment, and
(ix) Investments
in an aggregate amount to be determined in connection with the announced
transaction with BÖWE Bell & Howell and described on
Schedule 5.02(i) hereto.
(j) Maintenance of Cash and Cash
Equivalents. Permit
the aggregate balance of cash and Cash Equivalents in Deposit Accounts (other
than any checking accounts) in the United States as to which the Agent has a
perfected security interest to be less than $250,000,000 at any
time.
(k) Prepayments, Amendments,
Etc. of Debt. (i)
Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, any public debt securities, or prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner or make any payment in violation of any subordination terms of,
any subordinated Debt except (A) regularly scheduled (including repayments
of revolving facilities) or required repayments or redemptions of subordinated
Debt permitted hereunder, (B) any prepayments or redemptions of
subordinated Debt in connection with an extension, refunding or refinancing of
such subordinated Debt permitted by Section 5.02(d)(ii), (C) any repayments
of subordinated Debt to the Borrowers or their Subsidiaries that was permitted
to be incurred under this Agreement or (D) the Convertible Notes, the Company’s
9.95% $3,000,000 notes maturing 2018 and the Company’s 9.20% $10,000,00 notes
due 2021 or (ii) amend, modify or change in any manner adverse to the Lenders
any term or condition of any subordinated Debt.
SECTION
5.03. Financial
Covenant. So
long as (a) any Advance or any other payment obligation of any Loan Party of
which the Company has knowledge under any Loan Document shall remain unpaid, any
Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder and (b) any Fixed Charge Coverage Ratio Trigger Event shall have
occurred and be continuing, the Company will maintain a Consolidated Fixed
Charge Coverage Ratio, for the most recently ended fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01, of not
less than 1.1 to 1.0.
ARTICLE
VI
EVENTS OF
DEFAULT
SECTION
6.01. Events of
Default. If
any of the following events (“Events of Default”)
shall occur and be continuing:
(a) (i) Any Borrower
shall fail to pay any principal of any Advance when the same becomes due and
payable; (ii) any Borrower shall fail to pay any interest on any Advance or fees
within five Business Days after the same becomes due and payable; or (iii) any
Loan Party shall fail to make any other payment under any Loan Document, within
five Business Days after notice of such failure is given by the Agent or any
Lender to the Company; or
(b) Any
representation or warranty made by any Borrower herein or by any Significant
Loan Party in any Loan Document to which it is a party or by the Company (or any
of its officers) in a certificate delivered under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when made;
or
(c) (i) The
Company shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(d), (e) or (h) clauses (i) to through
(vii) and (ix), 5.02 or 5.03, or (ii) any Significant Loan Party shall fail
to perform or observe any other term, covenant or agreement contained in any
Loan Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have been given
to the Company by the Agent or any Lender; or
(d) The
Company or any of its Subsidiaries shall fail to pay any principal of or premium
or interest on any Debt that is outstanding in a principal, or in the case of
Hedge Agreement Obligations, net amount of, at least $50,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Company or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(e) The
Company or any of its Material Subsidiaries shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Company or any of its
Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or the Company or any
of its Material Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Judgments
or orders for the payment of money in excess of $50,000,000 in the aggregate
shall be rendered against the Company or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) (i) Any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Stock of the Company (or other securities convertible into such Voting
Stock) representing 35% or more of the combined voting power of all Voting Stock
of the Company; or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who at the
beginning of such 24-month period were
directors
of the Company together with individuals who were either (x) elected by a
majority of the remaining members of the board of directors of the Company or
(y) nominated for election by a majority of the remaining members of the board
of directors of the Company, shall cease for any reason to constitute a majority
of the board of directors of the Company; or
(h) Any ERISA
Event shall have occurred with respect to a Plan and the sum (determined as of
the date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the Loan Parties
and the ERISA Affiliates related to such ERISA Event) exceeds $50,000,000;
or
(i) Any Loan
Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Loan Parties and the ERISA
Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $50,000,000; or
(j) Any Loan
Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as a result of
such reorganization or termination the aggregate annual contributions of the
Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $50,000,000;
or
(k) Any
provision of any Collateral Document material to the substantial realization of
the rights of the Lenders under the Collateral Documents taken as a whole, or
any provision of any other Loan Document after delivery thereof pursuant to
Section 3.01 or 5.01(i) or (j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such Loan
Party shall so state in writing; or
(l) Any
Collateral Document or financing statement after delivery thereof pursuant to
Section 3.01 or 5.01(i) or (j) shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first priority lien on
and security interest in the Collateral (other than the Specified Collateral as
set forth in Section 6(m) of the Security Agreement and Section 6(m)
of the Canadian Security Agreement) purported to be covered
thereby;
then, and
in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
obligation of each Lender to make Advances (other than Advances to be made by an
Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing
Banks to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by each Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances (other than Advances to be made by an Issuing Bank or a
Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit shall automatically be terminated and (B) the Advances,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
SECTION
6.02. Actions in Respect of the
Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Agent may with
the consent, or shall at the request, of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01, make
demand upon the Company to, and forthwith upon such demand the Company will,
(a) pay to the Agent on behalf of the Lenders in same day funds at the
Agent’s office designated in such demand, for deposit in the L/C Cash
Deposit
Account,
an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding or (b) make such other arrangements in respect of the
outstanding Letters of Credit as shall be acceptable to the Required Lenders and
not more disadvantageous to the Company than clause (a); provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Company under the Federal Bankruptcy Code, an amount equal to the aggregate
Available Amount of all outstanding Letters of Credit shall be immediately due
and payable to the Agent for the account of the Lenders without notice to or
demand upon the Company, which are expressly waived by the Company, to be held
in the L/C Cash Deposit Account. If at any time an Event of Default
is continuing the Agent determines that any funds held in the L/C Cash Deposit
Account are subject to any right or claim of any Person other than the Agent and
the Lenders or that the total amount of such funds is less than the aggregate
Available Amount of all Letters of Credit, then the Company will, forthwith upon
demand by the Agent, pay to the Agent, as additional funds to be deposited and
held in the L/C Cash Deposit Account, an amount equal to the excess of (i) such
aggregate Available Amount over (ii) the total amount of funds, if any, then
held in the L/C Cash Deposit Account that the Agent determines to be free
and clear of any such right and claim. Upon the drawing of any Letter
of Credit, to the extent funds are on deposit in the L/C Cash Deposit Account,
such funds shall be applied to reimburse the Issuing Banks to the extent
permitted by applicable law. After all such Letters of Credit shall
have expired or been fully drawn upon, if at such time (x) no Event of Default
is continuing or (y) all other obligations of the Company hereunder and under
the Notes shall have been paid in full, the balance, if any, in such L/C Cash
Deposit Account shall be returned to the Company.
ARTICLE
VII
GUARANTY
SECTION
7.01. Guaranty; Limitation of
Liability. (a)
(i) Each of the Company and each US Subsidiary Guarantor, jointly and
severally, hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all obligations
of each other Loan Party and each other Subsidiary of the Company now or
hereafter existing under or in respect of the Loan Documents or any other
Secured Agreement (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such obligations being the “Comprehensive Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Agent or
any other Lender in enforcing any rights under this Guaranty or any other Loan
Document. Without limiting the generality of the foregoing, each
Guarantor’s liability shall extend to all amounts that constitute part of the
Comprehensive Guaranteed Obligations and would be owed by any other Loan Party
or Subsidiary of the Company, as applicable, to the Agent or any Lender under or
in respect of the Loan Documents or any Secured Agreement but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party or
Subsidiary, as the case may be.
(ii) Each of
the Company and each Canadian Subsidiary Guarantor, jointly and severally,
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all obligations of each
Canadian Loan Party now or hereafter existing under or in respect of the Loan
Documents or any other Secured Agreement (including, without limitation, any
extensions, modifications, substitutions, amendments or renewals of any or all
of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities,
contract causes of action, costs, expenses or otherwise (such obligations being
the “Canadian
Guaranteed Obligations”), and agrees to pay any and all expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Agent or any other Lender in enforcing any rights under this
Guaranty or any other Loan Document against such Guarantor. Without
limiting the generality of the foregoing, each Guarantor’s liability shall
extend to all amounts that constitute part of the Canadian Guaranteed
Obligations and would be owed by any other Loan Party to the Agent or any Lender
under or in respect of the Loan Documents by a Canadian Loan Party but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each
Guarantor, and by its acceptance of this Guaranty, the Agent and each other
Lender, hereby confirms that it is the intention of all such Persons that this
Guaranty and the obligations of each US Subsidiary Guarantor and each
Canadian Subsidiary Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty and the obligations of such
Guarantor hereunder. To effectuate the foregoing intention, the
Agent, the Lenders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the obligations of such Guarantor under
this Guaranty not constituting a fraudulent transfer or conveyance.
(c) (i) Each
US Subsidiary Guarantor hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to the Agent or any Lender
under this Guaranty or any guaranty supplement of the Comprehensive Guaranteed
Obligations, such US Subsidiary Guarantor will contribute, to the maximum extent
permitted by law, such amounts to each other US Subsidiary Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Agent and the
Lenders under or in respect of the Loan Documents.
(ii) Each
Canadian Subsidiary Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to the Agent or any Lender
under this Guaranty or any guaranty supplement of the Canadian Guaranteed
Obligations, such Canadian Subsidiary Guarantor will contribute, to the maximum
extent permitted by law, such amounts to each other Canadian Subsidiary
Guarantor and each other guarantor so as to maximize the aggregate amount paid
to the Agent and the Lenders under or in respect of the Loan
Documents.
SECTION
7.02. Guaranty
Absolute. Each
Guarantor guarantees that the applicable Guaranteed Obligations will be paid
strictly in accordance with the terms of the Loan Documents, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Lender with
respect thereto. The obligations of each Guarantor under or in
respect of this Guaranty are independent of the applicable Guaranteed
Obligations or any other obligations of any other Loan Party under or in respect
of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any Borrower or any other Loan Party or
whether any Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack
of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the applicable Guaranteed Obligations or any other obligations of any
other Loan Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the applicable Guaranteed
Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(c) any
taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to
departure from, any other guaranty, for all or any of the applicable Guaranteed
Obligations;
(d) any
manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the applicable Guaranteed Obligations or any manner of
sale or other disposition of any Collateral or any other collateral for all or
any of the applicable Guaranteed Obligations or any other obligations of any
Loan Party under the Loan Documents or any other assets of any Loan Party or any
of its Subsidiaries;
(e) any
change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;
(f) any
failure of the Agent or any Lender to disclose to any Loan Party any information
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or hereafter
known to the Agent or such Lender (each Guarantor waiving any duty on the part
of the Agent and the Lenders to disclose such information);
(g) the
failure of any other Person to execute or deliver this Agreement, any Guaranty
Supplement or any other guaranty or agreement or the release or reduction of
liability of any Guarantor or other guarantor or surety with respect to the
applicable Guaranteed Obligations; or
(h) any other
circumstance (including, without limitation, any statute of limitations) or any
existence of or reliance on any representation by the Agent or any Lender that
might otherwise constitute a defense available to, or a discharge of, any Loan
Party or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment of any of the applicable Guaranteed Obligations is
rescinded or must otherwise be returned by the Agent or any Lender or any other
Person upon the insolvency, bankruptcy or reorganization of the applicable
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
SECTION
7.03. Waivers and
Acknowledgments. (a) Each
Guarantor hereby unconditionally and irrevocably waives promptness, diligence,
notice of acceptance, presentment, demand for performance, notice of
nonperformance, default, acceleration, protest or dishonor and any other notice
with respect to any of the applicable Guaranteed Obligations and this Guaranty
and any requirement that the Agent or any Lender protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against any Loan Party or any other Person or any
Collateral.
(b) Each
Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies
to all applicable Guaranteed Obligations whether existing now or in the
future.
(c) Each
Guarantor hereby unconditionally and irrevocably waives (i) any defense
arising by reason of any claim or defense based upon an election of remedies by
the Agent or any Lender that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any
right of set-off or counterclaim against or in respect of the obligations of
such Guarantor hereunder.
(d) Each
Guarantor hereby unconditionally and irrevocably waives any duty on the part of
the Agent or any Lender to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by the Agent or such Lender.
(e) Each
Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the financing arrangements contemplated by the Loan Documents and
that the waivers set forth in Section 7.02 and this Section 7.03 are
knowingly made in contemplation of such benefits.
SECTION
7.04. Subrogation. Each
Guarantor hereby unconditionally and irrevocably agrees not to exercise any
rights that it may now have or hereafter acquire against any Borrower, any other
Loan Party or any other insider guarantor that arise from the existence,
payment, performance or enforcement of such Guarantor’s obligations under or in
respect of this Guaranty or any other Loan Document, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification and any right to participate in any claim or remedy of the
Agent or any Lender against any Borrower, any other Loan Party or any other
guarantor of some or all of the Guaranteed Obligations or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from any Borrower, any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the applicable Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, all Letters of
Credit shall have expired or been terminated and the Commitments shall have
expired or been
terminated. If
any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in
full in cash of the applicable Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Extension Termination Date and
(c) the latest date of expiration or termination of all Letters of Credit,
such amount shall be received and held in trust for the benefit of the Agent and
the Lenders, shall be segregated from other property and funds of such Guarantor
and shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the applicable Guaranteed Obligations and all other amounts payable
under this Guaranty by such Guarantor, whether matured or unmatured, in
accordance with the terms of the Loan Documents, or to be held as Collateral for
any applicable Guaranteed Obligations or other amounts payable under this
Guaranty by such Guarantor thereafter arising. If (i) any
Guarantor shall make payment to the Agent or any Lender of all or any part of
the applicable Guaranteed Obligations, (ii) all of the applicable
Guaranteed Obligations and all other amounts payable under this Guaranty by such
Guarantor shall have been paid in full in cash, (iii) the Extension
Termination Date shall have occurred and (iv) in the case of any US
Guarantor, all Letters of Credit shall have expired or been terminated, the
Agent and the Lenders will, at such Guarantor’s request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the applicable Guaranteed Obligations resulting
from such payment made by such Guarantor pursuant to this Guaranty.
SECTION
7.05. Guaranty
Supplements. i) Upon
the execution and delivery by any Person of a guaranty supplement in
substantially the form of Exhibit D hereto
(each, a “Guaranty
Supplement”), (a) such Person shall be referred to as an “Additional Guarantor”
and shall become and be a Guarantor hereunder, and each reference in this
Guaranty to a “Guarantor” shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a “US Subsidiary
Guarantor” or a “Canadian Subsidiary Guarantor”, as applicable, shall also mean
and be a reference to such Additional Guarantor, and (b) each reference
herein to “this Guaranty,” “hereunder,” “hereof” or words of like import
referring to this Guaranty, and each reference in any other Loan Document to the
“Guaranty,” “thereunder,” “thereof” or words of like import referring to this
Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.
SECTION
7.06. Subordination. (a) Each
Guarantor hereby subordinates any and all debts, liabilities and other
obligations owed to such Guarantor by each other Loan Party (the “Subordinated
Obligations”) to the applicable Guaranteed Obligations to the extent and
in the manner hereinafter set forth in this Section 7.06:
(b) Prohibited Payments,
Etc. Except
during the continuance of an Event of Default, each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the
continuance of any Event of Default, however, unless the Required Lenders
otherwise agree, no Guarantor shall demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(c) Prior Payment of Guaranteed
Obligations. In
any proceeding under any Bankruptcy Law relating to any other Loan Party, each
Guarantor agrees that the Lenders shall be entitled to receive payment in full
in cash of all applicable Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any Bankruptcy
Law, whether or not constituting an allowed claim in such proceeding (“Post-Petition
Interest”)) before such Guarantor receives payment of any Subordinated
Obligations.
(d) Turn-Over. After
the occurrence and during the continuance of any Event of Default, each
Guarantor shall, if the Agent (with the consent or at the direction of the
Required Lenders) so requests, collect, enforce and receive payments on account
of the Subordinated Obligations as trustee for the Agent and the Lenders and
deliver such payments to the Agent on account of the applicable Guaranteed
Obligations (including all Post-Petition Interest), together with any necessary
endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of such Guarantor under the other provisions of this
Guaranty.
(e) Agent
Authorization. After
the occurrence and during the continuance of any Event of Default, the Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and
to submit claims in respect of, the Subordinated Obligations and to apply any
amounts received thereon to the applicable Guaranteed Obligations (including any
and all Post-Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, the
Subordinated
Obligations and (B) to pay any amounts received on such obligations to the Agent
for application to the applicable Guaranteed Obligations (including any and all
Post-Petition Interest).
SECTION
7.07. Continuing Guaranty;
Assignments. This
Guaranty is a continuing guaranty and shall (a) except as provided in the
next succeeding sentence, remain in full force and effect until the latest of
(i) the payment in full in cash of the applicable Guaranteed Obligations
and all other amounts payable under this Guaranty, (ii) the Extension
Termination Date and (iii) the latest date of expiration or termination of
all Letters of Credit, (b) be binding upon each Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the Agent
and the Lenders and their successors, permitted transferees and permitted
assigns. Upon the sale of a Guarantor or any or all of the assets of
any Guarantor to the extent permitted in accordance with the terms of the Loan
Documents or upon such Guarantor otherwise ceasing to be a Subsidiary of the
Company organized under the laws of a state of the United States of America
without violation of the terms of this Agreement, such Guarantor (and its
Subsidiaries) or such assets shall be automatically released from this Guaranty
or any Guaranty Supplement, and all pledges and security interests of the equity
of such Guarantor or any Subsidiary of such Guarantor and all other pledges and
security interests in the assets of such Guarantor and any of its Subsidiaries
shall be released as provided in Section 9.14. Without limiting
the generality of clause (c) above, the Agent or any Lender may assign
or otherwise transfer all or any portion of its rights and obligations under
this Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and any Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each
case as and to the extent provided in Section 9.07. No Guarantor
shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
ARTICLE
VIII
THE
AGENT
SECTION
8.01. Authorization and
Action. Each
Lender hereby irrevocably appoints CUSA to act on its behalf as the Agent
hereunder and under the other Loan Documents and authorizes the Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Agent and the Lenders, and neither any Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions.
SECTION
8.02. Agent
Individually. (a) The
Person serving as the Agent hereunder shall have the same rights and powers in
its capacity as a Lender as any other Lender and may exercise the same as though
it were not the Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrowers or any of their Subsidiaries or other
Affiliate thereof as if such Person were not the Agent hereunder and without any
duty to account therefor to the Lenders.
(b) Each
Lender understands that the Person serving as Agent, acting in its individual
capacity, and its Affiliates (collectively, the “Agent’s Group”) are
engaged in a wide range of financial services and businesses (including
investment management, financing, securities trading, corporate and investment
banking and research) (such services and businesses are collectively referred to
in this Section 8.02 as “Activities”) and may
engage in the Activities with or on behalf of one or more of the Loan Parties or
their respective Affiliates. Furthermore, the Agent’s Group may, in
undertaking the Activities, engage in trading in financial products or undertake
other investment businesses for its own account or on behalf of others
(including the Loan Parties and their Affiliates and including holding, for its
own account or on behalf of others, equity, debt and similar positions in the
Borrowers, another Loan Party or their respective Affiliates), including trading
in or holding long, short or derivative positions in securities, loans or other
financial products of one or more of the Loan Parties or their
Affiliates. Each Lender understands and agrees that in engaging in
the Activities, the Agent’s Group may receive or otherwise obtain information
concerning the Loan Parties or their Affiliates (including information
concerning the ability of the Loan Parties to perform their respective
Obligations hereunder and under the other Loan Documents) which information may
not be available to any of the Lenders that are not members of the Agent’s
Group. None of the Agent nor any member of the Agent’s Group shall
have any duty to disclose to any Lender or use on behalf of
the
Lenders, and shall not be liable for the failure to so disclose or use, any
information whatsoever about or derived from the Activities or otherwise
(including any information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any Loan Party or
any Affiliate of any Loan Party) or to account for any revenue or profits
obtained in connection with the Activities, except that the Agent shall deliver
or otherwise make available to each Lender such documents as are expressly
required by any Loan Document to be transmitted by the Agent to the
Lenders.
(c) Each
Lender further understands that there may be situations where members of the
Agent’s Group or their respective customers (including the Loan Parties and
their Affiliates) either now have or may in the future have interests or take
actions that may conflict with the interests of any one or more of the Lenders
(including the interests of the Lenders hereunder and under the other Loan
Documents). Each Lender agrees that no member of the Agent’s Group is
or shall be required to restrict its activities as a result of the Person
serving as Agent being a member of the Agent’s Group, and that each member of
the Agent’s Group may undertake any Activities without further consultation with
or notification to any Lender. None of (i) this Agreement nor any
other Loan Document, (ii) the receipt by the Agent’s Group of information
(including Borrower Information) concerning the Loan Parties or their Affiliates
(including information concerning the ability of the Loan Parties to perform
their respective Obligations hereunder and under the other Loan Documents) nor
(iii) any other matter shall give rise to any fiduciary, equitable or
contractual duties (including without limitation any duty of trust or
confidence) owing by the Agent or any member of the Agent’s Group to any Lender
including any such duty that would prevent or restrict the Agent’s Group from
acting on behalf of customers (including the Loan Parties or their Affiliates)
or for its own account.
SECTION
8.03. Duties of Agent; Exculpatory
Provisions. (a) The
Agent's duties hereunder and under the other Loan Documents are solely
ministerial and administrative in nature and the Agent shall not have any duties
or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the
Agent shall not have any duty to take any discretionary action or exercise any
discretionary powers, but shall be required to act or refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
written direction of the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other Loan
Documents), provided that the
Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Agent or any of its Affiliates to
liability or that is contrary to any Loan Document or applicable
law.
(b) The Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 9.01 or 9.03) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to
have knowledge of any Default or the event or events that give or may give rise
to any Default unless and until the Company or any Lender shall have given
notice to the Agent describing such Default and such event or
events.
(c) Neither
the Agent nor any member of the Agent’s Group shall be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty,
representation or other information made or supplied in or in connection with
this Agreement, any other Loan Document or the information presented to the
other Lenders by the Company, (ii) the contents of any certificate, report
or other document delivered hereunder or thereunder or in connection herewith or
therewith or the adequacy, accuracy and/or completeness of the information
contained therein, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or the perfection or priority of any
Lien or security interest created or purported to be created by the Collateral
Documents or (v) the satisfaction of any condition set forth in
Article III or elsewhere herein, other than (but subject to the foregoing
clause (ii)) to confirm receipt of items expressly required to be delivered
to the Agent.
(d) Nothing
in this Agreement or any other Loan Document shall require the Agent
or any of its Related Parties to carry out any "know your customer"
or other checks in relation to any Person on behalf of any Lender and each
Lender confirms to the Agent that it is solely responsible for any such checks
it is required to carry out and that it may not rely on any statement in
relation to such checks made by the Agent or any of its Related
Parties.
SECTION
8.04. Reliance
by Agent. The
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing (including any electronic message, Internet or
intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper
Person. The Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender, the Agent may presume that such condition is satisfactory to such
Lender unless an officer of the Agent responsible for the transactions
contemplated hereby shall have received notice to the contrary from such Lender
prior to the making of such Loan or the issuance of such Letter of Credit, and
in the case of a Borrowing, such Lender shall not have made available to the
Agent such Lender’s ratable portion of such Borrowing. The Agent may
consult with legal counsel (who may be counsel for the Company or any other Loan
Party), independent accountants and other experts selected by it, and shall not
be liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
SECTION
8.05. Indemnification. (a) Each
Lender severally agrees to indemnify the Agent (to the extent not promptly
reimbursed by the Company) from and against such Lender’s ratable share (based
upon the aggregate of the Advances and unused Commitments (other than Letter of
Credit Commitments) of the Lenders) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the “Indemnified Costs”),
provided that no Lender shall be liable for any portion of the Indemnified Costs
resulting from the Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not promptly reimbursed for such expenses by the Company. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
(b) Each
Lender severally agrees to indemnify the Issuing Banks (to the extent not
promptly reimbursed by the Company) from and against such Lender’s Ratable Share
of any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against any such
Issuing Bank in any way relating to or arising out of the L/C Related Documents
or any action taken or omitted by such Issuing Bank hereunder or in connection
herewith; provided, however, that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Issuing Bank’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse any such Issuing Bank promptly upon demand for its Ratable Share of
any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Company under Section 9.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Company.
(c) The
failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon
demand for its ratable share of any amount required to be paid by the Lenders to
the Agent as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Agent or any Issuing Bank for its ratable
share of such amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s
ratable share of such amount. Without prejudice to the survival of
any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 8.05 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes. Each of the Agent and each Issuing Bank agrees to return
to the Lenders their respective ratable shares of any amounts paid under this
Section 8.05 that are subsequently reimbursed by the Company.
SECTION
8.06. Delegation of
Duties. The
Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
co-agents or sub-agents appointed by the Agent. The Agent and any
such co-agent or sub-agent may perform any and
all of
its duties and exercise its rights and powers by or through their respective
Related Parties. Each such co-agent and sub-agent and the Related
Parties of the Agent and each such co-agent and sub-agent shall be entitled to
the benefits of all provisions of this Article VIII and
Article IX (as
though such co-agents and sub-agents were the “Agent” under the Loan Documents)
as if set forth in full herein with respect thereto.
SECTION
8.07. Resignation of
Agent. (a)
The Agent may at any time give notice of its resignation to the Lenders and the
Company. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor, which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank with an office in New York, New York. If
no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation (such 30-day period, the “Lender Appointment
Period”), then the retiring Agent may on behalf of the Lenders, appoint a
successor Agent meeting the qualifications set forth above. In
addition and without any obligation on the part of the retiring Agent to
appoint, on behalf of the Lenders, a successor Agent, the retiring Agent may at
any time upon or after the end of the Lender Appointment Period notify the
Company and the Lenders that no qualifying Person has accepted appointment as
successor Agent and the effective date of such retiring Agent’s
resignation. Upon the resignation effective date established in such
notice and regardless of whether a successor Agent has been appointed and
accepted such appointment, the retiring Agent’s resignation shall nonetheless
become effective and (i) the retiring Agent shall be discharged from its
duties and obligations as Agent hereunder and under the other Loan Documents and
(ii) all payments, communications and determinations provided to be made
by, to or through the Agent shall instead be made by or to each Lender directly,
until such time as the Required Lenders appoint a successor Agent as provided
for above in this paragraph. Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties as Agent of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from all
of its duties and obligations as Agent hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this
Article and Section 8.05 and Section 9.04 shall continue in effect for
the benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Agent was acting as Agent.
(b) Any
resignation pursuant to this Section by a Person acting as Agent shall, unless
such Person shall notify the Company and the Lenders otherwise, also act to
relieve such Person and its Affiliates of any obligation to issue new, or extend
existing, Letters of Credit where such issuance or extension is to occur on or
after the effective date of such resignation. Upon the acceptance of
a successor’s appointment as Agent hereunder, (i) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Issuing Bank, (ii) the retiring Issuing Bank shall be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents arising on or after the effective date of such successor’s
appointment, and (iii) the successor Issuing Bank shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangement satisfactory to the retiring Issuing
Bank to effectively assume the obligations of the retiring Issuing Bank with
respect to such Letters of Credit.
SECTION
8.08. Non-Reliance on Agent and
Other Lenders. (a) Each
Lender confirms to the Agent, each other Lender and each of their respective
Related Parties that it (i) possesses (individually or through its Related
Parties) such knowledge and experience in financial and business matters that it
is capable, without reliance on the Agent, any other Lender or any of their
respective Related Parties, of evaluating the merits and risks (including tax,
legal, regulatory, credit, accounting and other financial matters) of (x)
entering into this Agreement, (y) making Loans and other extensions of
credit hereunder and under the other Loan Documents and (z) in taking or not
taking actions hereunder and thereunder, (ii) is financially able to bear such
risks and (iii) has determined that entering into this Agreement and making
Loans and other extensions of credit hereunder and under the other Loan
Documents is suitable and appropriate for it.
(b) Each
Lender acknowledges that (i) it is solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with this Agreement and the other Loan Documents, (ii) that it has,
independently and without reliance upon the Agent, any other Lender or any of
their respective Related Parties, made its own appraisal and investigation of
all risks associated with, and its own
credit
analysis and decision to enter into, this Agreement based on such documents and
information, as it has deemed appropriate and (iii) it will, independently and
without reliance upon the Agent, any other Lender or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal
and investigation of all risks arising under or in connection with, and its own
credit analysis and decision to take or not take action under, this Agreement
and the other Loan Documents based on such documents and information as it shall
from time to time deem appropriate, which may include, in each
case:
(i) the
financial condition, status and capitalization of the Company and each other
Loan Party;
(ii) the
legality, validity, effectiveness, adequacy or enforceability of this Agreement
and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Loan Document;
(iii) determining
compliance or non-compliance with any condition hereunder to the making of a
Loan, or the issuance of a Letter of Credit and the form and substance of all
evidence delivered in connection with establishing the satisfaction of each such
condition;
(iv) the
adequacy, accuracy and/or completeness of any information delivered by the
Agent, any other Lender or by any of their respective Related Parties under or
in connection with this Agreement or any other Loan Document, the transactions
contemplated hereby and thereby or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Loan Document.
SECTION
8.09. No Other Duties,
etc. Anything
herein to the contrary notwithstanding, none of the Persons acting as
Bookrunners, Arrangers or Syndication Agent listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of
the other Loan Documents, except in its capacity, as applicable, as the Agent or
as a Lender hereunder.
ARTICLE
IX
MISCELLANEOUS
SECTION
9.01. Amendments,
Waivers. No
amendment or waiver of any provision of this Agreement or the Notes, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) waive any of the
conditions specified in Section 3.01, (ii) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder, (iii) release all or substantially all of the Collateral
in any transaction or series of related transactions, (iv) release one or more
Guarantors (or otherwise limit such Guarantors’ liability with respect to the
obligations owing to the Agents and the Lenders under the Guaranties) if such
release or limitation is in respect of all or substantially all of the value of
the Guaranties, taken as a whole, to the Lenders, or (iv) amend this
Section 9.01 and (b) no amendment, waiver or consent shall, unless in
writing and signed by each Lender affected thereby, do any of the
following: (i) increase the Commitment of such Lender, (ii) reduce or
forgive the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (iii) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (iv) change the order of application of any reduction in the
Commitments or any prepayment of Advances among the Facilities from the
application thereof set forth in the applicable provisions of
Section 2.06(b) or 2.10(b), Section 19(b) of the Security Agreement or
Section 19(4) of the Canadian Security Agreement, respectively; and provided further that
(x) no amendment, waiver or consent shall, unless in writing and signed by
the Agent in addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note and
(y) no amendment, waiver or consent shall, unless in writing and signed by
the Issuing Banks in addition to the Lenders required above to take such action,
adversely affect the rights or obligations of the Issuing Banks in their
capacities as such under this Agreement, provided, however,
notwithstanding clauses (ii) and (iv) of clause (a) above, no consent
or waiver or other approval of any Lender shall be required for any release of
a
Guaranty
or Guaranty Supplement as provided in Section 7.07 or any release of
Collateral as provided in Section 9.14 or in any Collateral
Document.
SECTION
9.02. Notices,
Etc. (a) All
notices and other communications provided for hereunder shall be either (x) in
writing (including telecopier communication) and mailed, telecopied or delivered
or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), if to any Loan Party, at the address of
the Company at 343 State Street, Rochester New York 14650,
Attention: Treasurer with a copy to the same address, Attention:
General Counsel, fax number: (585) 724-9549; if to any Lender or Initial Issuing
Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assumption Agreement or the Assignment and Acceptance pursuant
to which it became a Lender; and if to the Agent, at its address at
Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan
Syndications Department, fax number: (212) 994-0849; or, as to the Company or
the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Company
and the Agent, provided that
materials required to be delivered pursuant to Section 5.01(h)(i), (ii) or
(iv) shall be delivered to the Agent as specified in Section 9.02(b)
or as otherwise specified to the Company by the Agent. All such
notices and communications shall, when mailed, telecopied or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the delivery
service or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not
be effective until received by the Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) So long
as CUSA or any of its Affiliates is the Agent, materials required to be
delivered pursuant to Section 5.01(h)(i), (ii) and (iv) shall be delivered
to the Agent in an electronic medium in a format acceptable to the Agent and the
Lenders by e-mail at oploanswebadmin@citigroup.com or at such other address as
the Agent may give notice to the Borrowers. The Company and the
Lenders agree that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Company, any of its Subsidiaries or any other materials or matters provided by,
or authorized to be provided by a party to this Agreement relating to this
Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the “Communications”)
available to the Lenders by posting such notices on an electronic platform
chosen by the Agent to be its electronic transmission system (the “Platform”). The
Communications shall be subject to the provisions of
Section 9.08. The Company acknowledges that (i) the distribution
of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution,
(ii) the Platform is provided “as is” and “as available” and (iii) neither
the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.
(c)
Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying
that any Communications have been posted to the Platform shall constitute
effective delivery of such information, documents or other materials to such
Lender for purposes of this Agreement; provided that if
requested by any Lender the Agent shall deliver a copy of the Communications to
such Lender by email or telecopier. Each Lender agrees (i) to notify
the Agent in writing of such Lender’s e-mail address to which a Notice may be
sent by electronic transmission (including by electronic communication) on or
before the date such Lender becomes a party to this Agreement (and from time to
time thereafter to ensure that the Agent has on record an effective e-mail
address for such Lender) and (ii) that any Notice may be sent to such e-mail
address.
SECTION
9.03. No Waiver;
Remedies. No
failure on the part of any Lender or the Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION
9.04. Costs and
Expenses. (a) The
Company agrees to pay on demand all reasonable costs and expenses of the Agent
in connection with the preparation, execution, delivery,
administration,
modification
and amendment of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit
expenses, (B) the reasonable fees and expenses of counsel for the Agent
with respect thereto, (C) fees and expenses incurred in connection with the
creation, perfection or protection of the liens under the Loan Documents
(including all reasonable search, filing and recording fees) and (D) costs
associated with insurance reviews, Collateral audits, field exams, collateral
valuations and collateral reviews to the extent provided herein, provided, however, the Company
shall not be required to pay fees or expenses of more than one counsel in any
jurisdiction where the Collateral is located, with respect to advising such
Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors’ rights generally and any
proceeding ancillary thereto. The Company further agrees to pay on
demand all costs and expenses of the Agent and each Lender, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of the Loan Documents, whether in any action, suit or litigation, or any
bankruptcy, insolvency or other similar proceeding affecting creditors’ rights
generally, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).
(b) The
Company agrees to indemnify and hold harmless the Agent and each Lender and each
of their Affiliates and their officers, directors, employees, trustees, agents
and advisors (each, an “Indemnified Party”)
from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances or Letters of Credit or (ii) the actual
or alleged presence of Hazardous Materials on any property of the Company or any
of its Subsidiaries or any Environmental Action relating in any way to the
Company or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense resulted from such Indemnified Party’s gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated. The Company and each Indemnified Party agrees not to
assert any claim for special, indirect, consequential or punitive damages
against the Company, the Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys and agents, on any
theory of liability, arising out of or otherwise relating to the Notes, this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances.
(c)
If any
payment of principal of, or Conversion of, any Eurodollar Rate Advance is made
by any Borrower to or for the account of a Lender other than on the last day of
the Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 9.07 as a result of a demand by the Company
pursuant to Section 9.07(a), the applicable Borrower shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(d)
Without
prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrowers
contained in Sections 2.11, 2.14 and 9.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION
9.05. Right of
Set-off. Upon
(i) the occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.01, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of any Borrower against any and all of the obligations
of such Borrower now or hereafter existing under this Agreement and any Note
held by such Lender, whether or not such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be unmatured,
provided, however, that no such
right shall exist against any deposit designated as being for the benefit of any
governmental authority. Each Lender agrees promptly to notify the
applicable Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION
9.06. Binding
Effect. This
amended and restatement of the Existing Credit Agreement shall become effective
in accordance with the Enabling Amendment and thereafter shall be binding upon
and inure to the benefit of the Borrowers, the Agent and each Lender and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of all of the Lenders.
SECTION
9.07. Assignments and
Participations. (a) Each
Lender may, with the consent of each Issuing Bank (which consent shall not be
unreasonably withheld or delayed), and, if demanded by the Company so long as no
Default shall have occurred and be continuing and only with respect to any
Affected Lender, upon at least five Business Days’ notice to such Lender and the
Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it, its
participations in Letters of Credit, if any, and the Note or Notes held by it);
provided, however, that
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement with respect to
one or more Facilities, (ii) except in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender,
or an assignment of all of a Lender’s rights and obligations under this
Agreement, the amount of (x) the Revolving Credit Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) the Unissued Letter of Credit Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, of the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 or an integral multiple of
$1,000,000 in excess thereof, in each case, unless the Company and the Agent
otherwise agree (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Company
pursuant to this Section 9.07(a) shall be arranged by the Company after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Company pursuant to this Section 9.07(a) unless and until such Lender
shall have received one or more payments from either the Borrowers or one or
more Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the
parties to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment; provided, however, that
(x) only one such fee shall be payable in connection with simultaneous
assignments to or by two or more Approved Funds with respect to a Lender and
(y) in the case of each assignment made as a result of a demand by the
Company, such recordation fee shall be payable by the Company except that no
such recordation fee shall be payable in the case of an assignment made at the
request of the Company to an Eligible Assignee that is an existing
Lender. Upon such
execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.11, 2.14 and 9.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be released
from its obligations (other than its obligations under Section 9.05 to the
extent any claim thereunder relates to an event arising prior to such
assignment) under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender’s rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its
receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Note or
Notes subject to such assignment, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(d) The Agent
shall maintain at its address referred to in Section 9.02 a copy of copy of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each
Lender may sell participations to one or more banks or other entities (other
than the Company or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and any Note or Notes
held by it); provided, however, that
(i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to the Borrowers hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrowers, the Agent 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 and (v) no participant under any such
participation shall have any right to approve any
amendment
or waiver of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, provided, however, that any
agreement between a Lender and such participant may provide that the Lender will
not, without the consent of participant, agree to any such amendment, waiver or
consent would reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any
Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 9.07, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Borrower
Information relating to the Borrowers received by it from such
Lender.
(g) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledge or assignee for
such Lender as a party hereto.
SECTION
9.08. Confidentiality. Neither
the Agent nor any Lender may disclose to any Person any confidential,
proprietary or non-public information of any Loan Party furnished to the Agent
or the Lenders by any Loan Party, including, without limitation
(1) earnings and other financial information and forecasts, budgets,
projections, plans, (including, without limitation, any confirmations of
publicly disclosed advice regarding any material matter); (2) mergers,
acquisitions, tender offers, joint ventures or changes in assets; (3) new
products or discoveries or developments regarding the Company’s customers or
suppliers; (4) changes in control or in management; (5) changes in
auditors or auditor notifications to the Company; (6) securities
redemptions, splits, repurchase plans, changes in dividends, changes in rights
of holders or sales of additional securities; and (7) negative news
relating to such matters as physical damage to properties from significant
events, loss of significant contractual relationship, material litigation,
defaults under contracts or securities, bankruptcy or receivership (such
information being referred to collectively herein as the “Borrower
Information”), except that each of the Agent and each of the Lenders may
disclose Borrower Information (i) to its and its Affiliates’ managers,
administrators, partners, employees, trustees, officers, directors, agents,
advisors and other representatives solely for purposes of this Agreement, any
Notes and the transactions contemplated hereby (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Borrower Information and instructed to keep such Borrower
Information confidential on terms substantially no less restrictive than those
provided herein), (ii) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulating
authority, such as the National Association of Insurance Commissioners), provided, to the
extent permitted by law and practicable under the circumstances, the Agent or
such Lender shall provide the Company with prompt notice of such requested
disclosure so that the Company may seek a protective order prior to the time
when the Agent or such Lender is required to make such disclosure, (iii) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, provided, to the
extent permitted by law and practicable under the circumstances, the Agent or
such Lender shall provide the Company with prompt notice of such requested
disclosure so that the Company may seek a protective order prior to the time
when the Agent or such Lender is required to make such disclosure,
(iv) subject to this Section 9.08, to any other Lender to this
Agreement which has requested such information, (v) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder, (vi) subject to an
agreement containing provisions no less restrictive than those of this
Section 9.08, to any assignee or participant or prospective assignee or
participant or any pledge referred to in Section 9.07(g), (vii) to the
extent such Borrower Information (A) is or becomes generally available to the
public on a non-confidential basis other than as a result of a breach of this
Section 9.08 by the Agent or such Lender, or (B) is or becomes legally
available to the Agent or such Lender on a nonconfidential basis from a source
other than a Loan Party, provided that the
source of such information was not known by the Agent or such Lender to be bound
by a confidentiality agreement with or other contractual, legal or fiduciary
obligations of confidentiality to a Loan Party or any other party with respect
to such information, (viii) with the consent of the Company, (ix) to any
party hereto and (x) subject to the Agent’s or the applicable Lender’s receipt
of an agreement containing provisions no less restrictive than those of this
Section, to any actual or prospective party (or its
managers,
administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives) to any swap, derivative or other transaction
under which payments are to be made by reference to the Company and
its Obligations, this Agreement or payments hereunder.
SECTION
9.09. Governing
Law. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION
9.10 Execution in
Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature
page to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION
9.11. Jurisdiction. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in such federal court. Each Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Company at its address
specified pursuant to Section 9.02. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of
the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the Notes in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION
9.12. No Liability of the Issuing
Banks. The
Company assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit. Neither an Issuing Bank nor any of its officers or directors
shall be liable or responsible for: (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by such Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any documents
to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Company shall have a claim against such
Issuing Bank, and such Issuing Bank shall be liable to the Company, to the
extent of any direct, but not consequential, damages suffered by the Company
that the Company proves were caused by such Issuing Bank’s willful misconduct or
gross negligence. In furtherance and not in limitation of the
foregoing, such Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary; provided that nothing
herein shall be deemed to excuse such Issuing Bank if it acts with gross
negligence or willful misconduct in accepting such documents.
SECTION
9.13. PATRIOT Act
Notice. Each
Lender and the Agent (for itself and not on behalf of any Lender) hereby
notifies each Borrower that pursuant to the requirements of the PATRIOT Act, it
is required to obtain, verify and record information that identifies such
Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender or the Agent, as applicable, to
identify such Borrower in accordance with the PATRIOT Act. Each
Borrower shall provide, to the extent commercially reasonable, such information
and take such actions as are reasonably requested by the Agent or any Lenders in
order to assist the Agent and the Lenders in maintaining compliance with the
PATRIOT Act.
SECTION
9.14. Release of Collateral; Termination of Loan Documents. (a) Upon
the sale, lease, transfer or other disposition of any item of Collateral of any
Loan Party in accordance with the terms of the Loan Documents, including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral, upon a Subsidiary
ceasing to be a Material Subsidiary, and at any time a Loan Party’s guarantee of
the obligations under the Loan Documents ceases as provided in
Section 7.07, the security interests granted by the Loan Documents with
respect to such items of Collateral and/or Loan Party shall immediately
terminate and automatically be released, and Agent will, at the Company’s
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral
Documents.
(b) Upon
the latest of (i) the payment in full in cash of all Obligations,
(ii) the termination in full of the Commitments and (iii) the latest
date of expiration or termination of all Letters of Credit (or receipt by the
Agent of an irrevocable notice from each Issuing Bank with a Letter of Credit
outstanding that it will not seek to enforce any rights that it has or may have
in accordance with Section 2.03 against the Agent or the Lenders), (x) except as
otherwise specifically stated in this Agreement or the other Loan Documents,
this Agreement and the other Loan Documents shall terminate and be of no further
force or effect, (y) the Agent shall release or cause the release of all
Collateral from the Liens of the Loan Documents and the Guarantors of all
Obligations under each Guaranty, and will, at the Company’s expense, execute and
deliver such documents as the Company may reasonably request to evidence the
release of Collateral from the assignment and security interest granted under
the Collateral Documents and the obligations of the Guarantors and (z) each
Lender that has requested and received a Note shall return such Note to the
Company marked “cancelled” or “paid in full”; provided, however, that the
Lenders’ obligations under Section 9.08 shall continue until the earlier of (x)
the date that is three years after the termination of this Agreement and (y) the
date that is three months after the latest date that is the subject of the
Projections delivered in accordance with Section 5.01(h)(viii), and the Lender’s
obligations under this Section 9.14 shall survive until satisfied.
SECTION
9.15. Judgment. (a) If
for the purposes of obtaining judgment in any court it is necessary to convert a
sum due hereunder in Dollars into another currency, the parties hereto agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures the
Agent could purchase Dollars with such other currency at Citibank’s principal
office in London at 11:00 A.M. (London time) on the Business Day preceding that
on which final judgment is given.
(b) The
obligation of each Borrower in respect of any sum due from it in any currency
(the “Primary
Currency”) to any Lender or the Agent hereunder shall, notwithstanding
any judgment in any other currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Agent (as the case may be),
of any sum adjudged to be so due in such other currency, such Lender or the
Agent (as the case may be) may in accordance with normal banking procedures
purchase the applicable Primary Currency with such other currency; if the amount
of the applicable Primary Currency so purchased is less than such sum due to
such Lender or the Agent (as the case may be) in the applicable Primary
Currency, each Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so
purchased exceeds such sum due to any Lender or the Agent (as the case may be)
in the applicable Primary Currency, such Lender or the Agent (as the case may
be) agrees to remit to such Borrower such excess.
SECTION
9.16. Borrowing Base
Amendments. Notwithstanding
anything contained herein to the contrary, no amendment, waiver or consent
shall, unless in writing and signed by the Supermajority Lenders, increase the
advance rates set forth in the definition of the term “Loan Value”, add new
asset categories to the Borrowing Base or otherwise cause the Borrowing Base or
availability under the Revolving Credit Facility provided for herein to be
increased.
SECTION
9.17. No
Fiduciary Duty. The Agent, each Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the “Affiliated Lenders”),
may have economic interests that conflict with those of the Loan
Parties. The Borrowers agree that nothing in the Loan Documents or
otherwise will be deemed to create an advisory, fiduciary or agency relationship
or fiduciary or other implied duty between the Affiliated Lenders and the
Borrowers, their stockholders or their Affiliates. The parties hereto
hereby acknowledge and agree that (i) the transactions contemplated by the Loan
Documents are arm’s-length commercial transactions between the Affiliated
Lenders, on the one hand, and the Borrowers, on the other, (ii) in connection
therewith and with the process leading
to such
transaction each of the Affiliated Lenders is acting solely as a principal and
not the agent or fiduciary of the Borrowers, their management, stockholders,
creditors or any other person, (iii) no Affiliated Lender has assumed an
advisory or fiduciary responsibility in favor of either Borrower with respect to
the transactions contemplated hereby or the process leading thereto
(irrespective of whether any Affiliated Lender or any of its affiliates has
advised or is currently advising either Borrower on other matters) or any other
obligation to either Borrower except the obligations expressly set forth in the
Loan Documents and (iv) the Borrowers have consulted their own legal and
financial advisors to the extent they have deemed appropriate. The
Borrowers further acknowledge and agree that they are responsible for making
their own independent judgment with respect to such transactions and the process
leading thereto. The Borrowers agree that they will not claim that
any Affiliated Lender has rendered advisory services of any nature or respect,
or owes a fiduciary or similar duty to the Borrowers, in connection with such
transaction or the process leading thereto.
SECTION
9.18. Waiver of Jury
Trial. Each of the Borrowers, the Agent and the Lenders hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the Notes or the actions of the Agent or any
Lender in the negotiation, administration, performance or enforcement
thereof.
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