As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 4/02/12  Aon plc                           8-K12B:1,2, 3/29/12   22:6.4M                                   Merrill Corp-MD/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K12B      8-K                                                 HTML    137K 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML    487K 
 3: EX-4.1      Instrument Defining the Rights of Security Holders  HTML    500K 
 4: EX-4.2      Instrument Defining the Rights of Security Holders  HTML    373K 
 5: EX-4.3      Instrument Defining the Rights of Security Holders  HTML    556K 
 6: EX-4.4      Instrument Defining the Rights of Security Holders  HTML     57K 
 7: EX-4.5      Instrument Defining the Rights of Security Holders  HTML    527K 
 8: EX-10.1     Material Contract                                   HTML    660K 
17: EX-10.10    Material Contract                                   HTML     23K 
18: EX-10.11    Material Contract                                   HTML    111K 
19: EX-10.12    Material Contract                                   HTML     20K 
20: EX-10.13    Material Contract                                   HTML     28K 
21: EX-10.14    Material Contract                                   HTML     92K 
 9: EX-10.2     Material Contract                                   HTML     23K 
10: EX-10.3     Material Contract                                   HTML   1.02M 
11: EX-10.4     Material Contract                                   HTML     39K 
12: EX-10.5     Material Contract                                   HTML     39K 
13: EX-10.6     Material Contract                                   HTML     38K 
14: EX-10.7     Material Contract                                   HTML     30K 
15: EX-10.8     Material Contract                                   HTML     25K 
16: EX-10.9     Material Contract                                   HTML     22K 
22: EX-99.1     Miscellaneous Exhibit                               HTML     16K 

EXHIBIT 10.1

 

EXECUTION VERSION

 

AMENDMENT NO. 1 TO TERM CREDIT AGREEMENT

 

AMENDMENT NO. 1 (this “Amendment”) dated March 30, 2012 (and effective as provided in Section 4 below) to the Credit Agreement (as defined below), among Aon Corporation, a Delaware corporation (the “Borrower”), Aon plc, a public limited liability company incorporated under English law (the “Parent”), the Lenders party hereto and Bank of America, N.A., as Administrative Agent (the “Administrative Agent”).

 

WITNESSETH:

 

Reference is made to the Term Credit Agreement dated as of June 15, 2011 (the “Credit Agreement”) among the Borrower, the Lenders party thereto and the Administrative Agent.

 

WHEREAS, the parties hereto desire to amend certain terms and provisions of the Credit Agreement all as set forth herein;

 

NOW, THEREFORE, the parties hereto agree as follows:

 

SECTION 1.  Defined Terms; References.  Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement (as amended hereby).  Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, after this Amendment becomes effective, refer to the Credit Agreement as amended hereby.

 

SECTION 2.  Amendments to Credit Agreement.  (a) Upon the Amendment No. 1 Effective Date, the Credit Agreement, including the exhibits and schedules thereto but excluding Schedule 1.01 thereto, is hereby amended to read in its entirety in the form set forth as Annex A hereto.  The Administrative Agent and the Borrower are hereby authorized by each Lender, in connection with the occurrence of the Amendment No. 1 Effective Date, to complete or modify any name, date or other provision in Annex A hereto which is set forth in brackets, and the agreement of the Administrative Agent and the Borrower with respect to any such name, date or provision shall be conclusive and binding for all purposes.

 

(b)           Notwithstanding anything to the contrary in the Credit Agreement (either before or after giving effect to this Amendment), the Lenders and the

 

 

Administrative Agent hereby consent to the Reorganization and agree that no Default or Unmatured Default under clause (j) of Section 7.01 of the Credit Agreement shall arise or result from the Reorganization or the transactions contemplated thereby, in each case so long as each of the conditions set forth in clauses (a) through (k) of Section 4 hereof are satisfied concurrently with or immediately following the Reorganization.

 

SECTION 3.  Representations And Warranties.  To induce the other parties hereto to enter into this Amendment, each Loan Party jointly and severally represents and warrants as of the Amendment No. 1 Effective Date as follows:

 

(a)           Each of the Parent and its Subsidiaries (other than Immaterial Subsidiaries) (a) is duly organized and validly existing under the laws of its jurisdiction of organization and (b) is in good standing (or its equivalent, if any) under the laws of its jurisdiction of organization and is duly qualified and in good standing (or its equivalent, if any) and is duly authorized to conduct its business in each jurisdiction in which its business is conducted or proposed to be conducted except where failure to be in such good standing (or the equivalent) or so qualified or authorized could not reasonably be expected to have a Material Adverse Effect.

 

(b)           This Amendment has been duly executed and delivered by each Loan Party.  Each Loan Party has all requisite power and authority (corporate and otherwise) and legal right to execute and deliver this Amendment and to perform its obligations thereunder.  The execution and delivery by each Loan Party of this Amendment and the performance of its obligations thereunder have been duly authorized by proper corporate proceedings or other organizational action and such Amendment constitutes legal, valid and binding obligations of such Loan Party enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.

 

(c)           The execution, delivery and performance by each Loan Party of this Amendment will not, (a) violate any law, rule, regulation (including Regulation U), order, writ, judgment, injunction, decree or award binding on the Parent or any Subsidiary or the Parent’s or any Subsidiary’s Organization Documents, (b) violate the provisions of or require the approval or consent of any party to any indenture, instrument or agreement to which the Parent or any Subsidiary is a party or is subject, or by which it, or its property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than Liens permitted by the Loan Documents) in, of or on the property of the Parent or any Subsidiary pursuant to the terms of any such indenture, instrument or agreement, or (c) require any consent of the stockholders of any Person (other than to the extent obtained), except, in each case, for any violation of, or failure to obtain an approval or consent required under, any such indenture,

 

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instrument or agreement that could not reasonably be expected to have a Material Adverse Effect.

 

(d)           The representations and warranties of each Loan Party contained in Article 5 of the Original Credit Agreement and in the Loan Documents are true and correct in all material respects, in each case on and as of the date hereof.

 

(e)           After giving effect to this Amendment and the transactions contemplated hereby, no Default or Unmatured Default has occurred and is continuing.

 

SECTION 4.  Conditions To Effectiveness of Amendment.  Section 2(b) of this Amendment shall be effective immediately upon the execution and delivery of this Amendment by the Borrower and the Required Lenders.  The other terms and provisions of this Amendment, including Section 2(a) hereof, shall become effective upon the satisfaction of the following conditions (the date that all such conditions are so satisfied, the “Amendment No. 1 Effective Date”):

 

(a)           The Reorganization shall have been consummated on substantially the terms of the Agreement and Plan of Merger and Reorganization attached as Annex A to the Form S-4 filed by the Parent on January 13, 2012, as amended by Amendment No. 1 filed by the Parent on February 6, 2012.

 

(b)           The Administrative Agent shall have received copies of the certificate of incorporation or other applicable organizational documents of the Borrower, Market Mergeco Inc. (a Delaware corporation and wholly owned subsidiary of the Parent which will, on the merger effective date, merge with and into the Borrower, “Mergeco”), and the Parent together with all amendments thereto, certified as of a recent date by the appropriate governmental officer in its jurisdiction of incorporation, together with (in the case of any company organized in the United States) a good standing certificate issued by the Secretary of State of the jurisdiction of its incorporation and such other jurisdictions as shall be reasonably requested by the Administrative Agent.

 

(c)           The Administrative Agent shall have received copies, certified by the Secretary or Assistant Secretary or other applicable officer or director of each Loan Party and Mergeco of its by-laws (or corresponding organizational document) and of its Board of Directors’ resolutions authorizing the execution, delivery and performance of each Loan Document to which it is a party.

 

(d)           The Administrative Agent shall have received an incumbency certificate, executed by the Secretary or Assistant Secretary or other applicable officer or director of each Loan Party which shall identify by name and title and bear the signature of the officers of such Loan Party authorized to sign the Loan Documents, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.

 

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(e)           The Administrative Agent shall have received written opinions of (i) internal counsel to the Borrower; (ii) Sidley Austin LLP, special counsel to the Loan Parties; and (iii) Simmons & Simmons LLP, special English counsel to the Administrative Agent, in each case addressed to the Administrative Agent and the Lenders in customary form.

 

(f)            The Administrative Agent shall have received an executed original of this Amendment, which shall be in full force and effect, together with all schedules, exhibits, certificates, instruments, opinions, documents and financial statements required to be delivered pursuant hereto or thereto.

 

(g)           The Lenders and the Agents shall have received all fees and expenses required to be paid on or prior to the Amendment No. 1 Effective Date and, with regard to expenses, for which invoices have been presented to the Borrower not less than one Business Day prior to the Amendment No. 1 Effective Date.

 

(h)           The Lenders shall have received, to the extent requested by the Lenders at least 5 Business Days prior to the Amendment No. 1 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided that if any such request was received by the Borrower at least 10 Business Days prior to the Amendment No. 1 Effective Date, the Borrower shall have provided such documents and other information at least 5 Business Days prior to the Amendment No. 1 Effective Date.

 

(i)            The representations and warranties set forth in Section 3 of this Amendment shall be true and correct on the Amendment No. 1 Effective Date.

 

(j)            Since December 31, 2011, there shall not have occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

(k)           Each Lender shall have received a certificate of an Authorized Officer of the Parent and the Borrower certifying (i) that after giving effect to this Amendment and the transactions contemplated hereby, no Default or Unmatured Default has occurred and is continuing, and (ii) as to the matters set forth in paragraphs (i) and (j).

 

(l)            The Administrative Agent shall have received execution copies of the definitive documentation in respect of (i) the refinancing of the Revolving Credit Facility and (ii) the amendment to the Euro Facility occurring in connection with or in anticipation of the Reorganization.

 

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The Administrative Agent shall notify the Lenders and the Borrower of the Amendment No. 1 Effective Date and such notice shall be conclusive and binding.

 

SECTION 5.  Obligations under the Credit Agreement.  The undersigned Parent hereby agrees, as of the Amendment No. 1 Effective Date, to be bound as a Loan Party by all of the terms and conditions of the Credit Agreement to the same extent as each of the other Loan Parties thereunder.  The undersigned Parent further agrees, as of the Amendment No. 1 Effective Date, that each reference in the Credit Agreement to the “Parent”, a “Guarantor” or a “Loan Party” shall also mean and be a reference to the undersigned Parent, and each reference in any other Loan Document to the “Parent”, a “Guarantor” or a “Loan Party” shall also mean and be a reference to the undersigned Parent.

 

SECTION 6.  Governing Law.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 7.  Costs And Expenses.  The Borrower agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with this Amendment No. 1, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent.

 

SECTION 8.  Counterparts.  This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  Delivery by telecopier, pdf or other electronic means of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.

 

SECTION 9.  Headings.  Section headings herein are included for convenience of reference only, and shall not govern the interpretation of this Amendment.

 

SECTION 10.  Severability.  The invalidity, illegality or unenforceability of any provision in or obligation under this Amendment in any jurisdiction shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Amendment or of such provision or obligation in any other jurisdiction.

 

SECTION 11.  Successors And Assigns.  This Amendment shall inure to the benefit of and be binding upon the successors and permitted assigns of the Administrative Agent, the Lenders and each Loan Party.

 

SECTION 12.  Obligations of Parent.  Notwithstanding anything in this Amendment or elsewhere to the contrary, in no event shall Parent have any duties, liabilities or obligations whatsoever under or with respect to this Amendment or

 

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any other Loan Document, without limiting or impairing each representation or warranty made or deemed made as of the Amendment No. 1 Effective Date by Parent, nor shall Parent be deemed to have made any representations or warranties or be bound by any covenants or agreements in this Amendment, the Credit Agreement or any other Loan Document, unless and until the consummation of the Reorganization and the occurrence of the Amendment No. 1 Effective Date.  Upon the consummation of the Reorganization and the occurrence of the Amendment No. 1 Effective Date, the Parent shall mean and be Aon plc (under that or any successor name), including as such company may be converted into a public limited company.

 

This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents.

 

[The remainder of this page is intentionally blank.]

 

6

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.

 

	AON CORPORATION
	By:	/s/ Christa Davies
		Name:	Christa Davies
		Title:	Chief Financial Officer

 

[Signature Page to Amendment No. 1]

 

 

	AON PLC
	By:	/s/ Christa Davies
		Name:	Christa Davies
		Title:	Executive Vice President and Chief Financial Officer

 

[Signature Page to Amendment No. 1]

 

 

	BANK OF AMERICA, N.A. as Lender and as Administrative Agent
	By:	/s/ Jacob Garcia
		Name:	Jacob Garcia
		Title:	Vice President

 

[Signature Page to Amendment No. 1]

 

 

	Australia and New Zealand Banking Group Limited
	By:	/s/ Robert Grillo
		Name:	Robert Grillo
		Title:	Director

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	Bank of Montreal
	By:	/s/ Scott W. Morris
		Name:	Scott W. Morris
		Title:	Director
	For Lenders requiring a second signature:
	By:
		Name:
		Title:

 

[Signature Page to Amendment No. 1]

 

 

	BNP PARIBAS
	By:	/s/ Marguerite L. Lebon
		Name:	Marguerite L. Lebon
		Title:	Vice President
	By:	/s/ Laurent Vanderzyppe
		Name:	Laurent Vanderzyppe
		Title:	Managing Director

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	CITIBANK, N.A.
	By:	/s/ Peter C. Bickford
		Name:	Peter C. Bickford
		Title:	Vice President & Managing Director

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	Commerzbank AG, New York and Grand Cayman Branch
	By:	/s/ Michael McCarthy
		Name:	Michael McCarthy
		Title:	Managing Director
	For Lenders requiring a second signature:
	By:	/s/ Paul Vedova
		Name:	Paul Vedova
		Title:	Vice President

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
	By:	/S/ Doreen Barr
		Name:	Doreen Barr
		Title:	Director
	For Lenders requiring a second signature:
	By:	/s/ Michael D. Spaight
		Name:	Michael D. Spaight
		Title:	Associate

 

[Signature Page to Amendment No. 1]

 

 

	DEUTSCHE BANK AG NEW YORK BRANCH
	By:	/s/ Virginia Cosenza
		Name:	Virginia Cosenza
		Title:	Vice President
	For Lenders requiring a second signature:
	By:	/s/ Ming K. Chu
		Name:	Ming K. Chu
		Title:	Vice President

 

[Signature Page to Amendment No. 1]

 

 

	Goldman Sachs Bank USA:
	By:	/s/ Michelle Latzoni
		Name:	Michelle Latzoni
		Title:	Authorized Signatory

 

[Signature Page to Amendment No. 1]

 

 

	JPMORGAN CHASE BANK, N.A.
	By:	/s/ Kristen M. Murphy
		Name:	Kristen M. Murphy
		Title:	Vice President

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	KeyBank National Association
	By:	/s/ Suzannah Valdivia
		Name:	Suzannah Valdivia
		Title:	Vice President

 

 

	For Lenders requiring a second signature:
	By:
		Name:
		Title:

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	LLOYDS TSB BANK PLC
	By:	/s/ Dennis McClellan
		Name:	Dennis McClellan
		Title:	Assistant Vice President — M040

 

 

	For Lenders requiring a second signature:
	By:	/s/ Julia R. Franklin
		Name:	Julia R. Franklin
		Title:	Vice President — F014

 

[Signature Page to Amendment No. 1]

 

 

	The Northern Trust Company
	By:	/s/ Chris McKean
		Name:	Chris McKean
		Title:	SVP

 

 

	For Lenders requiring a second signature:
	By:
		Name:
		Title:

 

[Signature Page to Amendment No. 1]

 

 

	The Royal Bank of Scotland plc
	By:	/s/ Joseph W. Lux
		Name:	Joseph W. Lux
		Title:	Managing Director

 

 

	For Lenders requiring a second signature:
	By:
		Name:
		Title:

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender:
	U.S. Bank National Association
	By:	/s/ Inna Kotsubey
		Name:	Inna Kotsubey
		Title:	Vice President

 

 

	For Lenders requiring a second signature:
	By:
		Name:
		Title:

 

[Signature Page to Amendment No. 1]

 

 

	Name of Lender: Wells Fargo Bank, N.A.
	By:	/s/ Jennifer Guinan
		Name:	Jennifer Guinan
		Title:	Assistant Vice President

 

[Signature Page to Amendment No. 1]

 

 

ANNEX A

 

FORM OF CREDIT AGREEMENT

 

(to be attached)

 

 

EXECUTION VERSION

 

Published CUSIP Number 03739XAR0

 

$450,000,000

 

TERM CREDIT AGREEMENT

 

Dated as of June 15, 2011

 

AMONG

 

AON CORPORATION,

 

as Borrower,

 

THE LENDERS,

 

BANK OF AMERICA, N.A.

 

as Administrative Agent,

 

MORGAN STANLEY SENIOR FUNDING, INC.

 

as Syndication Agent

 

and

 

CITIGROUP GLOBAL MARKETS, INC., CREDIT SUISSE AG,
DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA,
THE ROYAL BANK OF SCOTLAND PLC and WELLS FARGO BANK, N.A.

 

as Co-Documentation Agents

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

 

and

 

MORGAN STANLEY SENIOR FUNDING, INC.

 

as Joint Lead Arrangers and Joint Bookrunners

 

and

 

CITIGROUP GLOBAL MARKETS, INC., CREDIT SUISSE SECURITIES (USA) LLC,
DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA,
RBS SECURITIES INC. and WELLS FARGO SECURITIES, LLC

 

as Co-Arrangers

 

 

This Credit Agreement is a composite copy reflecting Amendment No. 1 dated March 30, 2012.

 

 

TABLE OF CONTENTS

 

 

	PAGE
ARTICLE 1
DEFINITIONS
Section 1.01 .  Definitions	1
ARTICLE 2
THE CREDITS
Section 2.01 .  Commitment	18
Section 2.02 .  Required Payments	18
Section 2.03 .  [RESERVED]	18
Section 2.04 .  Types of Advances	18
Section 2.05 .  Termination of Commitments	18
Section 2.06 .  Minimum Amount of Each Advance	18
Section 2.07 .  Optional Principal Payments	18
Section 2.08 .  Method of Selecting Types and Interest Periods for New Advances	19
Section 2.09 . Conversion and Continuation of Outstanding Advances	19
Section 2.10 .  Interest Rate, Etc.	20
Section 2.11 .  Rates Applicable After Default	20
Section 2.12 .  Method of Payment	21
Section 2.13 .  Noteless Agreement; Evidence of Indebtedness	21
Section 2.14 .  Telephonic Notices	22
Section 2.15 .  Interest Payment Dates; Interest and Fee Basis	22
Section 2.16 .  Notification of Advances, Interest Rates and Prepayments	22
Section 2.17 .  Lending Installations	23
Section 2.18 .  Non-Receipt of Funds by the Administrative Agent	23
Section 2.19 .  Replacement of Lender	23
ARTICLE 3
YIELD PROTECTION; TAXES
Section 3.01 .  Yield Protection	24
Section 3.02 .  Changes in Capital Adequacy Regulations	25
Section 3.03 .  Availability of Types of Advances	25
Section 3.04 .  Funding Indemnification	25
Section 3.05 .  Taxes	25
Section 3.06 .  Lender Statements; Survival of Indemnity	28

 

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ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01 .  Effectiveness	28
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01 .  Corporate Existence and Standing	30
Section 5.02 .  Authorization and Validity	30
Section 5.03 .  Compliance with Laws and Contracts	31
Section 5.04 .  Governmental Consents	31
Section 5.05 .  Financial Statements	31
Section 5.06 .  Material Adverse Effect	32
Section 5.07 .  Taxes	32
Section 5.08 .  Litigation and Contingent Obligations	32
Section 5.09 .  Employee Plans	32
Section 5.10 .  Defaults	33
Section 5.11 .  Regulation U	33
Section 5.12 .  Investment Company	33
Section 5.13 .  Ownership of Properties	33
Section 5.14 .  Material Agreements	34
Section 5.15 .  Environmental Laws	34
Section 5.16 .  Insurance	34
Section 5.17 .  Insurance Licenses	34
Section 5.18 .  Disclosure	34
Section 5.19 .  Solvency	35
Section 5.20 .  Senior Debt	35
Section 5.21 .  Foreign Corrupt Practices Act	35
ARTICLE 6
COVENANTS
Section 6.01 .  Financial Reporting	36
Section 6.02 .  Use of Proceeds	37
Section 6.03 .  Notice of Default	37
Section 6.04 .  Conduct of Business	38
Section 6.05 .  Taxes	38
Section 6.06 .  Insurance	38
Section 6.07 .  Compliance with Laws	38
Section 6.08 .  Maintenance of Properties	38
Section 6.09 .  Inspection	38
Section 6.10 .  Capital Stock and Dividends	39
Section 6.11 .  Merger	39
Section 6.12 .  Liens	39

 

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Section 6.13 .  Affiliates	40
Section 6.14 .  Change in Fiscal Year	41
Section 6.15 .  Restrictive Agreements	41
Section 6.16 .  Dispositions	41
Section 6.17 .  Financial Covenants	42
Section 6.18 .  Employee Plans	42
Section 6.19 .  Indebtedness	42
Section 6.20 .  Additional Guarantors	43
ARTICLE 7
DEFAULTS
Section 7.01 .  Defaults	43
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.01 .  Acceleration	45
Section 8.02 .  Amendments	45
Section 8.03 .  Preservation of Rights	46
ARTICLE 9
GENERAL PROVISIONS
Section 9.01 .  Survival of Representations	47
Section 9.02 .  Governmental Regulation	47
Section 9.03 .  Headings	47
Section 9.04 .  Entire Agreement	47
Section 9.05 .  Several Obligations; Benefits of this Agreement	47
Section 9.06 .  Expenses; Indemnification	47
Section 9.07 .  Numbers of Documents	49
Section 9.08 .  Accounting	49
Section 9.09 .  Severability of Provisions	49
Section 9.10 .  Nonliability of Lenders	49
Section 9.11 .  Confidentiality	50
Section 9.12 .  Disclosure	51
Section 9.13 .  USA PATRIOT ACT NOTIFICATION	51
Section 9.14 .  Judgments	51
ARTICLE 10
THE ADMINISTRATIVE AGENT
Section 10.01 .  Authorization and Authority	51
Section 10.02 .  Administrative Agent Individually	51
Section 10.03 .  Duties of Administrative Agent; Exculpatory Provisions	53

 

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Section 10.04 .  Reliance by Administrative Agent	54
Section 10.05 .  Delegation of Duties	54
Section 10.06 .  Resignation of Administrative Agent	54
Section 10.07 .  Non-Reliance on Administrative Agent and Other Lenders	55
Section 10.08 .  No Other Duties, Etc.	56
ARTICLE 11
SETOFF; RATABLE PAYMENTS
Section 11.01 .  Setoff	57
Section 11.02 .  Ratable Payments	57
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.01 .  Successors and Assigns	57
Section 12.02 .  Participations	58
Section 12.03 .  Assignments	59
Section 12.04 .  Dissemination of Information	60
Section 12.05 .  Tax Treatment	60
ARTICLE 13
NOTICES
Section 13.01 .  Giving Notice	60
Section 13.02 .  Change of Address	62
ARTICLE 14
COUNTERPARTS
ARTICLE 15
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 15.01 .  CHOICE OF LAW	62
Section 15.02 .  CONSENT TO JURISDICTION	62
Section 15.03 .  WAIVER OF JURY TRIAL	63
Section 15.04 .  Agent for Service of Process	63
ARTICLE 16
GUARANTY
Section 16.01 .  Guaranty	63
Section 16.02 .  Guaranty Absolute	63
Section 16.03 .  Rights Of Lenders	64
Section 16.04 .  Certain Waivers and Acknowledgements	65

 

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Section 16.05 .  Obligations Independent	65
Section 16.06 .  Subrogation	65
Section 16.07 .  Termination; Reinstatement	66
Section 16.08 .  Stay Of Acceleration	66
Section 16.09 .  Condition Of Borrower	66
Section 16.10 .  Guaranty Supplements	66

 

v

 

Schedules
Pricing Schedule
Schedule 1.01		Commitments
Schedule 5.21		Foreign Corrupt Practices Act Matters
Schedule 6.19(e)		Existing Indebtedness
Exhibits
Exhibit A	Form Note
Exhibit B	Form Compliance Certificate
Exhibit C	Form Assignment Agreement

 

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“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person.  A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.

 

“Agent” means the Administrative Agent, any Arranger, the Syndication Agent, the Co-Documentation Agents and each Co-Arranger and “Agents” means all of them.

 

“Agent’s Group” is defined in Section 10.02(b).

 

“Aggregate Commitment” means the aggregate of the Commitments of all the Lenders, as reduced from time to time pursuant to the terms hereof.  The initial Aggregate Commitment is $450,000,000.

 

“Aggregate Outstanding Credit Exposure” means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.

 

“Agreement” means this Term Credit Agreement, as it may be amended or modified and in effect from time to time.

 

“Agreement Accounting Principles” means generally accepted accounting principles as in effect from time to time, applied in a manner consistent with those used in preparing the financial statements referred to in Section 4.01(m).

 

“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar Base Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the avoidance of doubt, the Eurodollar Base Rate for any day shall be based on the rate determined on such day at approximately 11 a.m. (London time) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized vendor for the purpose of displaying such rates).  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Base Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Base Rate, as the case may be.

 

“Alternate Base Rate Advance” means an Advance which bears interest determined by reference to the Alternate Base Rate.

 

“Alternate Base Rate Loan” means a Loan which bears interest determined by reference to the Alternate Base Rate.

 

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“Amendment No. 1” means Amendment No. 1 dated March 30, 2012 to the Credit Agreement.

 

“Amendment No. 1 Effective Date” means the date on which Amendment No. 1 becomes effective pursuant to Section 4 thereof, which date is April 2, 2012.

 

“Aon Intermediate” means Aon Holdings LLC, a Delaware limited liability company, and its successors and permitted assigns.

 

“Applicable Margin” means, (a) with respect to Alternate Base Rate Advances, the percentage rate per annum which is applicable at such time with respect to Alternate Base Rate Advances as set forth in the Pricing Schedule and (b) with respect to Eurodollar Advances, the percentage rate per annum which is applicable at such time with respect to Eurodollar Advances as set forth in the Pricing Schedule.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding, Inc. and their respective successors, in their capacity as “Joint Lead Arrangers”.

 

“Article” means an article of this Agreement unless another document is specifically referenced.

 

“Authorized Officer” means any of the president, chief financial officer, treasurer or vice-president and controller of the Parent or the Borrower, as applicable, acting singly.

 

“Borrower” means Aon Corporation, a Delaware corporation, and its successors and permitted assigns.

 

“Borrower Debt Rating” means the senior unsecured long-term debt (without third party credit enhancement) rating of the Borrower as most recently announced publicly by a rating agency identified on the Pricing Schedule.

 

“Borrowing Date” means a date on which an Advance is made hereunder.

 

“Borrowing Notice” is defined in Section 2.08.

 

“Business Day” means (a) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (b) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of

 

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substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.

 

“Capitalized Lease” of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“Change in Control” means (a) the acquisition by any Person, or two or more Persons acting in concert, including without limitation any acquisition effected by means of any transaction contemplated by Section 6.11, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of voting stock of the Parent, (b) during any period of 25 consecutive calendar months, commencing on the Amendment No. 1 Effective Date, the ceasing of those individuals (the “Continuing Directors”) who (i) were directors of the Parent or the Borrower on the first day of each such period or (ii) subsequently became directors of the Parent or the Borrower and whose initial election or initial nomination for election subsequent to that date was approved by a majority of the Continuing Directors then on the board of directors of the Parent or the Borrower, respectively, to constitute a majority of the board of directors of the Parent or the Borrower, respectively, or (c) the Borrower ceasing to be a directly or indirectly wholly owned Subsidiary of the Parent.

 

“Change in Law” means the occurrence, after the date hereof, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any governmental or quasi-governmental authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any governmental or quasi-governmental authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Closing Date” shall mean the date on which the conditions precedent set forth in Section 4.01 have been satisfied or waived.

 

“Closing Date Transactions” means the execution, delivery and performance on the Closing Date of this Agreement, including the funding of the Loans hereunder and the application of the proceeds thereof.

 

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“Co-Arrangers” means Citigroup Global Markets, Inc. Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, RBS Securities Inc. and Wells Fargo Securities, LLC (or, in each case, their respective successors), in their collective capacity as “Co-Arrangers”.

 

“Co-Documentation Agents” means Citigroup Global Markets, Inc., Credit Suisse AG, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, The Royal Bank of Scotland plc and Wells Fargo Bank, N.A. (or, in each case, their respective Affiliates and successors), in their collective capacity as “Co-Documentation Agents”.

 

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

 

“Commitment” means, for each Lender, the obligation of such Lender to make Loans to the Borrower in an aggregate outstanding amount not exceeding the amount set forth opposite its name on Schedule 1.01 hereto, as it may be modified as a result of any assignment that has become effective pursuant to Section 12.03(b) or as otherwise modified from time to time pursuant to the terms hereof.

 

“Commitment Letter” means that Commitment Letter dated as of May 19, 2011 from Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding, Inc. to the Borrower.

 

“Communications” is defined in Section 13.01.

 

“Condemnation” is defined in Section 7.01(h).

 

“Confidential Information Memorandum” means the Confidential Information Memorandum of the Borrower dated May 2011.

 

“Consolidated” or “consolidated”, when used in connection with any calculation, means a calculation to be determined on a consolidated basis for the Parent and its Subsidiaries (or, when used with respect to any other Person, such Person and its Subsidiaries) in accordance with generally accepted accounting principles.

 

“Consolidated Adjusted EBITDA” means, for any Measurement Period, Consolidated Net Income for such period plus, (a) to the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary losses incurred other than in the ordinary course of business, (vi) the Transaction Costs and (vii) non recurring cash charges incurred for such period in connection with the Merger (as defined in the Existing Credit Agreement) in an amount not to exceed $50,000,000 in the aggregate for the period beginning on the Effective Date (as defined in the Existing Credit Agreement) and through the term of this Agreement minus (b) to the extent included in Consolidated Net Income, extraordinary gains realized other than in the ordinary course of business, all calculated for the Parent and its

 

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Subsidiaries on a consolidated basis; provided that, notwithstanding the foregoing provisions of this definition, no amounts shall be added pursuant to clauses (i) through (v) for any losses, costs, expenses or other charges resulting from the settlement of any Disclosed Claims or any payments in respect of any judgments or other orders thereon or any restructuring or other charges in connection therewith or relating thereto; provided further that, for purposes of Section 6.17(b) only, if any acquisition occurs during a Measurement Period, Consolidated Adjusted EBITDA for such Measurement Period shall be calculated on a pro forma basis giving effect to any one or more of such acquisitions if the Company in its discretion shall so elect.

 

“Consolidated Funded Debt” means, without duplication, (i) all Indebtedness of the Parent and its Subsidiaries of the types described in clauses (a), (b), (c), (d) and (e) of the definition of Indebtedness (excluding, for purposes of clauses (b) and (c), any leases that constitute operating leases in accordance with Agreement Accounting Principles), and (ii) all Indebtedness of the Parent and its Subsidiaries of the type described in clause (j) of the definition of Indebtedness with respect to Indebtedness of the types described in clause (i) above, calculated on a Consolidated basis.

 

“Consolidated Interest Expense” means, for any Measurement Period, the interest expense of the Parent and its Subsidiaries calculated on a consolidated basis for such period.

 

“Consolidated Leverage Ratio” means, as of the last day of any Measurement Period, the ratio of Consolidated Funded Debt at such date to Consolidated Adjusted EBITDA for such Measurement Period.

 

“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the Parent and its Subsidiaries calculated on a consolidated basis for such period.

 

“Consolidated Net Worth” means, at any date of determination, the consolidated common stockholders’ equity of the Parent and its consolidated Subsidiaries determined in accordance with Agreement Accounting Principles.

 

“Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement or take or pay contract or application for a Letter of Credit.

 

“Controlled Group” means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Parent, any Loan Party or any of their respective Subsidiaries, are treated as a single employer under Section 414 of the Code.

 

“Conversion/Continuation Notice” is defined in Section 2.09.

 

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“Credit Extension” means the making of an Advance hereunder.

 

“Credit Extension Date” means the Borrowing Date for an Advance.

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization, administration or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“Default” means an event described in Article 7.

 

“Defaulting Lender” has the meaning specified in Section 2.19.

 

“Disclosed Claims” means any litigation, proceeding or investigation disclosed in the Borrower’s annual report on Form 10-K for the year ended December 31, 2011.

 

“Disposition” or “Dispose” means the sale, transfer or other disposition (including any sale and leaseback transaction), in each case for consideration in any single transaction or series of related transactions in excess of $25,000,000 (as determined reasonably in good faith by the Parent), by any Person of any Property (including any equity interests owned by such Person, or any notes or accounts receivable or any rights and claims associated therewith) of such Person (or the granting of any option or other right to do any of the foregoing).

 

“Environmental Laws” is defined in Section 5.15.

 

“Environmental Liability” has the meaning specified in Section 9.06(b).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.

 

“Euro Facility” means the €650,000,000 Facility Agreement dated as of October 15, 2010 by and among the Borrower, the Subsidiaries of the Borrower party thereto, Citibank International plc, as agent, and the financial institutions parties thereto as lenders, as amended on July 18, 2011 and amended and restated pursuant to the Amendment and Restatement Agreement dated as of March 30, 2012, as the same may be further supplemented, modified and amended from time to time, provided that, in each case, the principal amount of the credit committed thereunder is not increased without the consent of the Required Lenders except as contemplated by Section 6.19(b).  References to any specific section of the Euro Facility shall be deemed to refer to the corresponding provision in the Euro Facility as modified, amended, renewed or refinanced from time to time.

 

“Eurodollar Advance” means an Advance which, except as otherwise provided in Section 2.11, bears interest at the applicable Eurodollar Rate.

 

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“Eurodollar Base Rate” means, with respect to a Eurodollar Advance for the Interest Period applicable to such Eurodollar Advance, the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters LIBOR01 Page as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, (i) if Reuters LIBOR01 Page is not available to the Administrative Agent for any reason, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized financial information service as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, and (ii) if no such British Bankers’ Association Interest Settlement Rate is available to the Administrative Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which the Administrative Agent offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, in the approximate amount of the Administrative Agent’s relevant Eurodollar Loan and having a maturity equal to such Interest Period.

 

“Eurodollar Loan” means a Loan which, except as otherwise provided in Section 2.11, bears interest at the applicable Eurodollar Rate.

 

“Eurodollar Rate” means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base Rate applicable to such Interest Period, divided by (ii) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (b) the Applicable Margin for Eurodollar Advances.

 

“Excluded Taxes” means, in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such Lender’s principal executive office or such Lender’s applicable Lending Installation is located.

 

“Exhibit” refers to an exhibit to this Agreement, unless another document is specifically referenced.

 

“Existing Credit Agreement” means the $1,000,000,000 Three-Year Term Credit Agreement dated as of August 13, 2010 among the Borrower, Credit Suisse AG, as agent, and the lenders party thereto, as amended, restated, supplemented or otherwise modified from time to time.  References to any specific section of the Existing Credit Agreement shall be deemed to refer to the corresponding provision in the Existing Credit Agreement as modified, amended, renewed or refinanced from time to time.

 

“FATCA” means Section 1471 through 1474 of the Code, as in effect on the date hereof, and any applicable Treasury regulations or published administrative guidance promulgated thereunder.

 

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“Federal Funds Effective Rate” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (New York time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.

 

“Fee Letter” means the Fee Letter dated as of May 19, 2011 from Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding, Inc. to the Borrower.

 

“Financial Statements” is defined in Section 4.01(m).

 

“Fiscal Quarter” means each of the four three-month accounting periods comprising a Fiscal Year.

 

“Fiscal Year” means the twelve-month accounting period ending December 31 of each year.

 

“Foreign Corrupt Practices Act” is defined in Section 5.21.

 

“Fund” means any Person (other than a natural person) 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 of its business.

 

“Funded Target Attainment Percentage” has the meaning set forth in Section 430(d)(2) of the Code or Section 303(d)(2) of ERISA.

 

“Governmental Authority” means any government (foreign or domestic) or any state or other political subdivision thereof or any governmental body, agency, authority, department or commission (including without limitation any taxing authority or political subdivision) or any instrumentality or officer thereof (including, without limitation, any court or tribunal and any board of insurance, insurance department or insurance commissioner) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation, partnership or other entity directly or indirectly owned or controlled by or subject to the control of any of the foregoing.

 

“Guarantor” means, collectively, (x) the Parent and (y) any Subsidiary that shall have executed and delivered a Guaranty Supplement to the Administrative Agent (it being understood that in no event shall Market Mergeco Inc., a Delaware corporation, be a Guarantor).

 

“Guaranty” means the Guaranty made by the Parent set forth in Article 16 of this Agreement together with each Guaranty Supplement.

 

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“Guaranty Supplement” means a joinder agreement to the Guaranty set forth in Article 16 or a guaranty supplement, in each case in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered by a Subsidiary and providing for such Subsidiary’s guaranty of the other Loan Parties’ Obligations under the Loan Documents.

 

“Hazardous Materials” is defined in Section 5.15.

 

“Hedging Agreement” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.

 

“Immaterial Subsidiaries” means one or more Subsidiaries of the Parent, the Consolidated total assets, Consolidated revenues and Consolidated net operating income of which, in the aggregate, do not exceed three percent (3%) of the Consolidated total assets, Consolidated revenues and Consolidated net operating income, respectively, of the Parent and its Subsidiaries, in each case determined as of the end, or for, as the case may be, the period of four Fiscal Quarters most recently ended for which financial statements have been or are required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b); provided that in no case shall the Borrower or any Intermediate Holding Company be deemed an Immaterial Subsidiary.

 

“Indebtedness” of a Person means, without duplication, (a) such Person’s obligations for borrowed money, (b) obligations of such Person representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (c) such Person’s obligations 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), (d) such Person’s obligations which are evidenced by bonds, notes, debentures, acceptances, or similar instruments, (e) Capitalized Lease Obligations of such Person, (f) Contingent Obligations of such Person, (g) obligations, contingent or otherwise, for which such Person is obligated pursuant to or in respect of Letters of Credit or bankers’ acceptances, (h) such Person’s obligations under Hedging Agreements to the extent required to be reflected on a balance sheet of such Person, (i) repurchase obligations or liabilities of such Person with respect to accounts or notes receivable sold by such Person, and (j) all Indebtedness and other obligations referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness or other obligations has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person or payable out of the proceeds or production from property of such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other obligations.

 

“Information” is defined in Section 9.11.

 

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“Interest Period” means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement.  An Interest Period of one, two, three or six months shall end on (but exclude) the day which corresponds numerically to such date one, two, three or six months thereafter; provided, however, that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month.  If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day; provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.

 

“Intermediate Holding Company” means any Subsidiary of the Parent that is a direct or indirect owner of equity in the Borrower.

 

“Judgment Currency” is defined in Section 9.14.

 

“Knowledge” means the actual knowledge of any fact, circumstance or condition of any officer of the Parent or the Borrower.

 

“Law” means any Federal, state, local, foreign, international or multinational treaty, constitution, statute or other law, ordinance, rule or regulation.

 

“Lender Appointment Period” is defined in Section 10.06.

 

“Lenders” means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns.

 

“Lending Installation” means, with respect to a Lender or the Administrative Agent, the office or branch of such Lender or the Administrative Agent listed on the signature pages hereof, on a Schedule or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.17.

 

“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.

 

“Lien” means any security interest, lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

 

“Loan” means, with respect to a Lender, such Lender’s loan made pursuant to Article 2 (or any conversion or continuation thereof).

 

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“Loan Documents” means this Agreement and any Notes issued pursuant to Section 2.13 and the other documents and agreements contemplated hereby and executed by any Loan Party in favor of the Administrative Agent or any Lender.

 

“Loan Parties” means, collectively, the Borrower and each Guarantor.

 

“Margin Stock” has the meaning assigned to that term under Regulation U.

 

“Material Adverse Effect” means a material adverse effect on (a) the business, Property, condition (financial or otherwise), performance or results of operations of the Parent and its Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations under the Loan Documents, or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.

 

“Maturity Date” means October 1, 2013.

 

“Measurement Period” means, at any date of determination, the most recently completed four consecutive Fiscal Quarters of the Parent ending on or prior to such date.

 

“Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.

 

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

 

“Non-U.S. Lender” is defined in Section 3.05(d).

 

“Note” is defined in Section 2.13.

 

“Notice” is defined in Section 13.01.

 

“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of any Loan Party to the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan Documents.

 

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or the memorandum and articles of association (if applicable); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

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Section 412 of the Code, as to which the Parent or any member of the Controlled Group may have any liability.

 

“Platform” is defined in Section 13.01.

 

“Pricing Schedule” means the Schedule attached hereto identified as such.

 

“Prime Rate” means mean the rate of interest per annum announced from time to time by Bank of America, N.A. (or any successor to Bank of America, N.A. in its capacity as Administrative Agent) as its “prime rate”.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Process Agent” is defined in Section 15.04.

 

“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

 

“pro rata” means, when used with respect to a Lender, and any described aggregate or total amount, an amount equal to such Lender’s pro rata share or portion based on its percentage of the Aggregate Commitment or if the Aggregate Commitment has been terminated, its percentage of the Aggregate Outstanding Credit Exposure.

 

“Purchasers” is defined in Section 12.03.

 

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to depositary institutions.

 

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks and certain other Persons for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System and certain other Persons.

 

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

 

“Release” is defined in the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.  “Released” shall have a corresponding meaning.

 

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“Reorganization” means the merger and corporate reorganization described in Form S-4 filed by the Parent on January 13, 2012, as amended by Amendment No. 1 filed by the Parent on February 6, 2012, including the Agreement and Plan of Merger and Reorganization attached as Annex A thereto.

 

“Repayment Date” is defined in Section 2.02.

 

“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; provided, that a failure to meet the minimum funding standard of Section 412 or 430 of the Code or Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(c) of the Code.

 

“Required Lenders” means Lenders in the aggregate holding more than 50% of the Aggregate Outstanding Credit Exposure; provided 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 Outstanding Credit Exposure of such Lender at such time.

 

“Reserve Requirement” means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities.

 

“Revolving Credit Facility” means the $400,000,000 Five-Year Credit Agreement dated as of March 20, 2012 among the Borrower, Citibank, N.A., as agent, and the lenders party thereto, as amended, restated, supplemented or otherwise modified from time to time.  References to any specific section of the Revolving Credit Facility shall be deemed to refer to the corresponding provision in the Revolving Credit Facility as modified, amended, renewed or refinanced from time to time.

 

“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto.

 

“Schedule” refers to a specific schedule to this Agreement, unless another document is specifically referenced.

 

“Section” means a numbered section of this Agreement, unless another document is specifically referenced.

 

“Single Employer Plan” means a Plan other than a Multiemployer Plan.

 

“Solvent” and “Solvency” mean, with respect to the Borrower and its Subsidiaries, on a consolidated basis, on any date of determination, that on such date (a) the Fair Value (as defined below) of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities, including contingent liabilities, of the Borrower and its

 

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Subsidiaries, on a consolidated basis, (b) the Present Fair Salable Value (as defined below) of the assets of the Borrower and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on their debts as they become absolute and matured, (c) the Borrower and its Subsidiaries do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature, (d) the Borrower and its Subsidiaries are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the Borrower’s and its Subsidiaries’ property, on a consolidated basis, would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Borrower and its Subsidiaries are engaged in on the date hereof, and (e) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  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.  For the purpose hereof, “Fair Value” means the amount at which the aggregate assets of the Borrower and its Subsidiaries would change hands between a willing buyer and a willing seller within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, neither being under any compulsion to act, with equity to both.  “Present Fair Salable Value” means the amount that may be realized if the aggregate assets of the Borrower and its Subsidiaries are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises.

 

“Subsidiary” of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, association, joint venture, limited liability company or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.  Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Parent.

 

“Substantial Portion” means, with respect to the Property of the Parent and its Subsidiaries, Property which (a) represents more than 10% of the consolidated assets of the Parent and its Subsidiaries, as would be shown in the consolidated financial statements of the Parent and its Subsidiaries as at the end of the quarter next preceding the date on which such determination is made, or (b) is responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Parent and its Subsidiaries for the 12-month period ending as of the end of the quarter next preceding the date of determination.

 

“Syndication Agent” means Morgan Stanley Senior Funding, Inc. and its successors, in its capacity as “Syndication Agent”.

 

“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.

 

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“Termination Event” means, with respect to any Plan which is subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Parent or any other member of the Controlled Group from such Plan during a plan year in which the Parent or any other member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA, (c) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met, (d) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA), (e) the termination of such Plan, the filing of a notice of intent to terminate such Plan or the treatment of an amendment of such Plan as a termination under Section 4041 of ERISA, (f) the institution by the PBGC of proceedings to terminate such Plan or (g) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Plan.

 

“Transaction Costs” means fees and expenses in an aggregate amount not to exceed $50,000,000 in connection with the Transactions (as defined under the Existing Credit Agreement).

 

“Transferee” is defined in Section 12.04.

 

“Type” means, with respect to any Advance, its nature as an Alternate Base Rate Advance or a Eurodollar Advance.

 

“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

 

“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.  L.  No.  107-56 (signed into law October 26, 2001)).

 

“Wholly Owned Subsidiary” of a Person means (a) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly Owned Subsidiaries of such Person, or by such Person and one or more Wholly Owned Subsidiaries of such Person, or (b) any partnership, association, joint venture, limited liability company or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.  Unless otherwise provided, all references herein to a “Wholly Owned Subsidiary” shall mean a Wholly Owned Subsidiary of the Parent.

 

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.  In computations 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”.

 

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thereof, any portion of the outstanding Alternate Base Rate Advances upon notice to the Administrative Agent by 11:00 a.m. (New York time) on the Business Day of the proposed prepayment.  The Borrower may from time to time pay, subject to the payment of any funding indemnification amounts required by Section 3.04 but without penalty or premium, all outstanding Eurodollar Advances, or, in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of an outstanding Eurodollar Advance, upon three (3) Business Days’ prior notice to the Administrative Agent.  Prepayments shall be applied to scheduled amortization of the Loans as directed by the Borrower.

 

SECTION 2.08.  Method of Selecting Types and Interest Periods for New Advances.  The Borrower shall select the Type of Advance and, in the case of each Eurodollar Advance, the Interest Period applicable thereto from time to time.  The Borrower shall give the Administrative Agent irrevocable notice (a “Borrowing Notice”) not later than 11:00 a.m. (New York time) on the Business Day prior to the Closing Date of each Alternate Base Rate Advance and at least three (3) Business Days before the Closing Date for each Eurodollar Advance, specifying:

 

(a)         the Borrowing Date of such Advance, which shall be the Closing Date and a Business Day;

 

(b)         the aggregate amount of such Advance;

 

(c)         the Type of Advance selected; and

 

(d)         in the case of each Eurodollar Advance, the Interest Period applicable thereto.

 

Not later than 11:00 a.m. (New York time) on the Closing Date, each Lender shall make available its Loan or Loans, in funds immediately available in New York, to the Administrative Agent at its address specified pursuant to Article 13.  The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.

 

SECTION 2.09.   Conversion and Continuation of Outstanding Advances.  Each Alternate Base Rate Advance shall continue as an Alternate Base Rate Advance unless and until such Alternate Base Rate Advance is converted into a Eurodollar Advance pursuant to this Section 2.09 or is repaid in accordance with Section 2.02 or Section 2.07.  Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into an Alternate Base Rate Advance unless (a) such Eurodollar Advance is or was repaid in accordance with Section 2.02 or Section 2.07 or (b) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Advance continues as a Eurodollar Advance for the same or another Interest Period (or, if no Interest Period is specified in such Conversion/Continuation Notice, continuation shall be for a one (1) month Interest Period).  Subject to the terms of Section 2.06, the Borrower may elect from time to time to convert all or any part of an Alternate Base Rate Advance into a Eurodollar Advance.  Subject to the payment of any funding indemnification

 

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amounts required by Section 3.04, the Borrower may elect from time to time to convert all or any part of a Eurodollar Advance into an Alternate Base Rate Advance.  The Borrower shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each (x) conversion of an Alternate Base Rate Advance into a Eurodollar Advance or the continuation of a Eurodollar Advance as a new Eurodollar Advance not later than 11:00 a.m. (New York time) at least three (3) Business Days prior to the date of the requested conversion or continuation and (y) conversion of a Eurodollar Advance into an Alternate Base Rate Advance, not later than 11:00 a.m. (New York time) on the date of the requested conversion, in each case specifying:

 

(a)         the requested date of such conversion or continuation, which shall be a Business Day;

 

(b)         the aggregate amount and Type of the Advance which is to be converted or continued; and

 

(c)         the amount and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Eurodollar Advance, the duration of the Interest Period applicable thereto, which shall end on or prior to the Maturity Date.

 

SECTION 2.10.  Interest Rate, Etc.  Each Alternate Base Rate Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a Eurodollar Advance into an Alternate Base Rate Advance pursuant to Section 2.09, to but excluding the date it is paid or is converted into a Eurodollar Advance pursuant to Section 2.09 hereof, at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin with respect to Alternate Base Rate Advances, in each case for such day.  Changes in the rate of interest on that portion of any Advance maintained as an Alternate Base Rate Advance will take effect simultaneously with each change in the Alternate Base Rate.  Each Eurodollar Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the Eurodollar Rate determined by the Administrative Agent as applicable to such Eurodollar Advance based upon the Borrower’s selections under Section 2.08 and Section 2.09 and otherwise in accordance with the terms hereof.  No Interest Period may end after the Maturity Date.

 

SECTION 2.11.  Rates Applicable After Default.  Notwithstanding anything to the contrary contained in Section 2.08 or Section 2.09, no Advance may be made as, converted into or continued as a Eurodollar Advance (except with the consent of the Administrative Agent and the Required Lenders) when any Default or Unmatured Default has occurred and is continuing.  During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.02 requiring unanimous consent of the Lenders to changes in interest rates), declare that (a) each Eurodollar Advance shall bear interest for the remainder of the applicable Interest Period at the Eurodollar Rate otherwise applicable to such Interest Period plus 2% per annum and (b) each Alternate Base Rate Advance shall bear interest at a rate per annum

 

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equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin for Alternate Base Rate Advances plus 2% per annum provided that, during the continuance of a Default under Section 7.01(f) or Section 7.01(g), the interest rates set forth in clauses (a) and (b) above shall be applicable to all Advances without any election or action on the part of the Administrative Agent or any Lender.

 

SECTION 2.12.  Method of Payment.  All payments of the Obligations hereunder shall be made, without setoff, deduction or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article 13, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by noon (New York time) on the date when due and shall be applied ratably by the Administrative Agent among the Lenders entitled to such payments.  Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified pursuant to Article 13 or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender.

 

SECTION 2.13.  Noteless Agreement; Evidence of Indebtedness.  (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(b)         The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(c)         The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

 

(d)         Any Lender may request that its Loans be evidenced by a promissory note in substantially the form of Exhibit A (including any amendment, modification, renewal or replacement thereof, a “Note”).  In such event, the Borrower shall prepare, execute and deliver to such Lender such Note payable to the order of such Lender.  Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 12.03) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 12.03, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (a) and (b) above.  Upon receipt of an affidavit of

 

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an officer of any Lender as to the loss, theft, destruction or mutilation of such Lender’s Note, and, in the case of any such loss, theft, destruction or mutilation, upon cancellation of such Note, the Borrower will issue, in lieu thereof, a replacement Note in the same principal amount thereof and otherwise of like tenor.

 

SECTION 2.14.  Telephonic Notices.  The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices and Conversion/Continuation Notices to be given telephonically; provided that the Borrower delivers promptly to the Administrative Agent a written confirmation of each telephonic notice signed by an Authorized Officer.  If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.

 

SECTION 2.15.  Interest Payment Dates; Interest and Fee Basis.  Interest accrued on each Alternate Base Rate Advance shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof, on any date on which an Alternate Base Rate Advance is prepaid (with respect to the principal so prepaid), whether due to acceleration or otherwise, and at maturity.  Interest accrued on that portion of the outstanding principal amount of any Alternate Base Rate Advance converted into a Eurodollar Advance on a day other than a Payment Date shall be payable on the date of conversion.  Interest accrued on each Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid (with respect to the principal so prepaid), whether by acceleration or otherwise, and at maturity.  Interest accrued on each Eurodollar Advance having an Interest Period longer than three (3) months shall also be payable on the last day of each three-month interval during such Interest Period.  Interest with respect to Eurodollar Loans and Alternate Base Rate Loans for which interest is not determined by reference to the Prime Rate shall be calculated for actual days elapsed on the basis of a 360 day year.  Interest with respect to Alternate Base Rate Loans for which interest is determined by reference to the Prime Rate shall be calculated for the actual days elapsed on the basis of a 365 or 366 day year, as applicable.  Interest shall be payable for the day an Advance is made but not for the day of any payment.  If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

 

SECTION 2.16.  Notification of Advances, Interest Rates and Prepayments.  Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Borrowing Notice, Conversion/Continuation Notice and repayment notice received by it hereunder.  The Administrative Agent will notify each Lender of the Eurodollar Rate applicable to each Eurodollar Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.

 

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SECTION 2.17.  Lending Installations.  Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time.  All terms of this Agreement shall apply to any such Lending Installation and the Loans and any Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation.  Each Lender may, by written notice to the Administrative Agent and the Borrower in accordance with Article 13, designate replacement or additional Lending Installations through which Loans will be made by it will be issued by it and for whose account Loan payments are to be made.

 

SECTION 2.18.  Non-Receipt of Funds by the Administrative Agent.  Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the time at which it is scheduled to make payment to the Administrative Agent of (a) in the case of a Lender, the proceeds of a Loan, or (b) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made.  The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption.  If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.

 

SECTION 2.19.  Replacement of Lender.  If (a) the Borrower is required pursuant to Section 3.01, 3.02 or 3.05 to make any additional payment to any Lender, (b) any Lender’s obligation to make or continue, or to convert Alternate Base Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.03, or (c) any Lender is a Defaulting Lender (any Lender so affected an “Affected Lender”), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective or such Lender continues to be a Defaulting Lender, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances at par and other Obligations due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.03 applicable to assignments, and (ii) the Borrower and/or the assignee shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Section 3.01, 3.02 and 3.05, and (B) an amount, if

 

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Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received.

 

SECTION 3.02.  Changes in Capital Adequacy Regulations.  If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change in Law, then, within fifteen (15) days of demand by such Lender as provided in Section 3.06, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender determines is attributable to this Agreement or its Outstanding Credit Exposure (after taking into account such Lender’s policies as to capital adequacy).

 

SECTION 3.03.  Availability of Types of Advances.  If any Lender determines that maintenance of its Eurodollar Loans at a suitable Lending Installation would violate any applicable law, rule, regulation, interpretation or directive, whether or not having the force of law, or if the Required Lenders determine that (a) deposits of a type and maturity appropriate to match fund Eurodollar Advances are not available or (b) the interest rate applicable to Eurodollar Advances does not accurately or fairly reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall suspend the availability of Eurodollar Advances and require any affected Eurodollar Advances to be repaid or converted to Alternate Base Rate Advances, subject to the payment of any funding indemnification amounts required by Section 3.04.

 

SECTION 3.04.  Funding Indemnification.  If any payment of a Eurodollar Advance occurs on a date prior to the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.

 

SECTION 3.05.  Taxes.  (a)  Subject to applicable law, all payments by the Borrower or any Loan Party to or for the account of any Lender or the Administrative Agent hereunder or under any Note shall be made free and clear of and without deduction for any and all Taxes.  Subject to subsection (e) below and Section 3.06, if the Borrower or any Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.05) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such Loan Party shall make such deductions, (iii) the Borrower or such Loan Party shall pay the full amount deducted to the relevant authority in accordance with applicable law and (iv) the Borrower or such Loan Party shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof, or other evidence reasonably acceptable to the Administrative Agent, within thirty (30) days after such payment is made.

 

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(b)         In addition, the Borrower and each Loan Party hereby agree to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note (“Other Taxes”).

 

(c)         The Borrower and each Loan Party do hereby agree to, jointly and severally,  indemnify the Administrative Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.05) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto.  Payments due under this indemnification shall be made within thirty (30) days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 3.06.

 

(d)         Each Lender that is not incorporated or otherwise organized under the laws of the United States of America or a state thereof (each a “Non-U.S. Lender”) agrees that it will, not more than ten (10) Business Days after the date of this Agreement (or, in the case of a Lender who becomes a party hereto after the date of this Agreement, the date it becomes a party hereto), deliver to each of the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or W-8IMY (and any required attachments), certifying in either case that such Lender is entitled to receive payments under this Agreement and the other Loan Documents without deduction or withholding of any United States federal income taxes.  Each Non-U.S. Lender further undertakes, to the extent lawful at such time, to deliver to each of the Borrower and the Administrative Agent (i) renewals or additional copies of such form (or any successor form) on or before the date that such form expires or becomes obsolete, and (ii) after the occurrence of any event requiring a change in the most recent forms so delivered by it, such additional forms or amendments thereto as may be required by applicable law or otherwise reasonably requested by the Borrower or the Administrative Agent.  In addition, each Non-US Lender shall deliver to the Administrative Agent and the Borrower any documents as shall be prescribed by applicable law or otherwise reasonably requested to demonstrate that payments to such Lender under this Agreement and the other Loan Documents are exempt from any United States federal withholding tax imposed pursuant to FATCA.  All forms or amendments described in the preceding sentence shall certify that such Lender is entitled to receive payments of interest under this Agreement and the other Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred after the date it became a Lender hereunder and prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form or amendment with respect to it and such Lender advises the Borrower and the Administrative Agent that it is not capable of receiving payments of interest without any deduction or withholding of United States federal income tax.  For purposes of this Section 3.05(d), each change of a Lender’s Lending Installation in accordance with Section 2.17 shall be treated as though such Lending Installation became a party hereto on the date of such change of Lending Installation.

 

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(e)         For any period during which a Non-U.S. Lender has failed to provide the Borrower with an appropriate form or other document pursuant to clause (d) above (unless such failure is due to a change in treaty, law or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, occurring subsequent to the date on which a form or other document originally was required to be provided), such Non-U.S. Lender shall not be entitled to additional payments or indemnification under this Section 3.05 with respect to Taxes imposed by the United States; provided that, should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes because of its failure to deliver a form or other document required under clause (d), above, the Borrower shall take such steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to recover such Taxes.

 

(f)         Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any other Loan Document pursuant to the law of any relevant jurisdiction or any treaty shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate.

 

(g)         Each Lender that is not a Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

 

(h)         If the U.S. Internal Revenue Service or any other Governmental Authority of the United States or any other country or any political subdivision thereof asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered its exemption from withholding ineffective, or for any other reason not caused by or constituting gross negligence or willful misconduct of the Administrative Agent), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this subsection, together with all reasonable costs and expenses related thereto (including reasonable attorneys’ fees and reasonable time charges of attorneys for the Administrative Agent, which attorneys may be employees of the Administrative Agent).  The obligations of the Lenders under this Section 3.05(h) shall survive the payment of the Obligations and termination of this Agreement.

 

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hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.

 

(d)         Legal Opinions of Counsel to Borrower.  Written opinions of (i) internal counsel to the Borrower and (ii) Sidley Austin LLP, special counsel to the Borrower, addressed to the Administrative Agent and the Lenders in customary form.

 

(e)         Notes.  Any Notes requested by a Lender pursuant to Section 2.13 not less than two (2) Business Days prior to the Closing Date payable to the order of each such requesting Lender.

 

(f)         Loan Documents.  Executed originals of this Agreement and each of the other Loan Documents, which shall be in full force and effect, together with all schedules, exhibits, certificates, instruments, opinions, documents and financial statements required to be delivered pursuant hereto and thereto.

 

(g)         Payment of Fees.  The Lenders and the Agents shall have received all fees and expenses required to be paid on or prior to the Closing Date (including pursuant to the Commitment Letter and the Fee Letter) and, with regard to expenses, for which invoices have been presented to the Borrower not less than one Business Day prior to the Closing Date.

 

(h)         USA PATRIOT Act.  The Lenders shall have received, to the extent requested by the Lenders at least 5 Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided that if any such request was received by the Borrower at least 10 Business Days prior to the Closing Date, the Borrower shall have provided such documents and other information at least 5 Business Days prior to the Closing Date.

 

(i)          Defaults.  There exists no Default or Unmatured Default and none would result from such Credit Extension.

 

(j)          Representations and Warranties.  (i) The representations and warranties set forth in Article 5 of the Original Credit Agreement shall be true and correct in all material respects on the Closing Date after giving effect to the Closing Date Transactions.

 

(k)         Borrowing Notice.  A Borrowing Notice shall have been properly submitted.  Such Borrowing Notice shall constitute a representation and warranty by the Borrower that the conditions contained in this Section 4.01 have been satisfied.

 

(l)          Repayment of Existing Credit Agreement.  All indebtedness of the Borrower for credit extended under the Existing Credit Agreement shall have been (or substantially simultaneously with the closing of this Agreement shall be) repaid and discharged in full, all commitments (if any) in respect thereof terminated and all guarantees (if any) thereof discharged and released.

 

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proceedings or other organizational action and such Loan Documents constitute legal, valid and binding obligations of such Loan Party enforceable against such Loan Party in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.

 

SECTION 5.03.  Compliance with Laws and Contracts.  The Parent and its Subsidiaries have complied in all material respects with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government, or any instrumentality or agency thereof, having jurisdiction over the conduct of their respective businesses or the ownership of their respective properties, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect.  Neither (i)(A) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party or (B) the application of the proceeds of the Loans, nor (ii) compliance with the provisions of the Loan Documents will, or at the relevant time did, (a) violate any law, rule, regulation (including Regulation U), order, writ, judgment, injunction, decree or award binding on the Parent or any Subsidiary or the Parent’s or any Subsidiary’s Organization Documents, (b) violate the provisions of or require the approval or consent of any party to any indenture, instrument or agreement to which the Parent or any Subsidiary is a party or is subject, or by which it, or its property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than Liens permitted by the Loan Documents) in, of or on the property of the Parent or any Subsidiary pursuant to the terms of any such indenture, instrument or agreement, or (c) require any consent of the stockholders of any Person (other than to the extent obtained and in full force and effect), in each case, except for any violation of, or failure to obtain an approval or consent required under, any such indenture, instrument or agreement that could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.04.  Governmental Consents.  No order, consent, approval, qualification, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of, any court, governmental or public body or authority, or any subdivision thereof, any securities exchange or other Person is or at the relevant time was required to authorize, or is or at the relevant time was required in connection with the execution, delivery, consummation or performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents or the application of the proceeds of the Loans.  Neither the Parent nor any Subsidiary is in default under or in violation of any foreign, federal, state or local law, rule, regulation, order, writ, judgment, injunction, decree or award binding upon or applicable to the Parent or such Subsidiary, in each case the consequence of which default or violation could reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.05.  Financial Statements.  Each of the most recent financial statements delivered pursuant to Section 6.01 on or prior to the Amendment No. 1 Effective Date was prepared in accordance with generally accepted accounting principles and fairly presents the consolidated financial condition and operations of the Borrower and its Subsidiaries at such dates and the consolidated results of their operations for the respective periods then ended (except, in the case of such unaudited statements, for normal year-end audit adjustments).

 

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SECTION 5.06.  Material Adverse Effect.  Since December 31, 2011, there has not occurred any event, change, effect, development, state of facts, condition, circumstance or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

SECTION 5.07.  Taxes.  The Parent and its Subsidiaries have filed or caused to be filed on a timely basis and in correct form all United States federal, state and other material tax returns which are required to be filed and have paid all taxes due pursuant to said returns or pursuant to any assessment received by the Parent or any Subsidiary, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with generally accepted accounting principles and as to which no Lien exists.  As of the Amendment No. 1 Effective Date, the United States income tax returns of the Borrower on a consolidated basis have been audited by the Internal Revenue Service through its Fiscal Year ending December 31, 2008.  No tax liens have been filed and no claims are being asserted with respect to any such taxes which could reasonably be expected to have a Material Adverse Effect.  The charges, accruals and reserves on the books of the Parent and its Subsidiaries in respect of any taxes or other governmental charges are in accordance with generally accepted accounting principles.

 

SECTION 5.08.  Litigation and Contingent Obligations.  There is no litigation, arbitration, proceeding, inquiry or governmental investigation (including, without limitation, by the Federal Trade Commission) pending or, to the knowledge of any of their officers, threatened against or affecting the Parent or any Subsidiary or any of their respective Properties that could reasonably be expected to have a Material Adverse Effect or to prevent, enjoin or unduly delay the making of any Credit Extensions under this Agreement, except for Disclosed Claims.

 

SECTION 5.09.  Employee Plans.  (a)  Neither the Parent nor any member of the Controlled Group maintains, or is obligated to contribute to, any Multiemployer Plan or has incurred, or is reasonably expected to incur, any withdrawal liability to any Multiemployer Plan.  Each Plan complies in all material respects with its terms and with all applicable requirements of law and regulations.  Neither the Parent nor any member of the Controlled Group has, with respect to any Plan, failed to make any contribution or pay any amount required under Section 412 of the Code or Section 302 of ERISA or the terms of such Plan which could reasonably be expected to have a Material Adverse Effect.  There are no pending or, to the knowledge of Parent or the Borrower, threatened claims, actions, investigations or lawsuits against any Plan, any fiduciary thereof, or the Parent or any member of the Controlled Group with respect to a Plan which could reasonably be expected to have a Material Adverse Effect.  Neither the Parent nor any member of the Controlled Group has engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan which would subject such Person to any material liability.  No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which could reasonably be expected to have a Material Adverse Effect.

 

(b)            Except as could not reasonably be expected to have a Material Adverse Effect, neither the Parent nor any Subsidiary as of the Amendment No. 1 Effective Date is, or has at any

 

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time in the six years prior to the Amendment No. 1 Effective Date been, (i) an employer (for the purposes of Sections 38 to 51 of the Pensions Act 2004) of any occupational pension scheme which is not a money purchase scheme (as both such terms are defined in the Pension Schemes Act 1993), is not a Permitted UK Defined Benefit Pension Plan and is not a scheme within Section 38(1)(b) of the Pensions Act 2004 or (ii) “connected” with or an “associate” (as those terms are used in Sections 38 and 43 of the Pensions Act 2004) of such an employer.  The present value of all accumulated benefit obligations under each Permitted UK Defined Benefit Pension Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not exceed the fair market value of the assets of such Permitted UK Defined Benefit Pension Plan, in each case as of the date of the most recent financial statements prior to the Amendment No. 1 Effective Date reflecting such amounts, except where any underfunding of the Permitted UK Defined Benefit Pension Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) as of such date would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  As of the Amendment No. 1 Effective Date, neither the Parent nor any Subsidiary has been issued with a contribution notice or financial support direction by the UK Pensions Regulator or received any warning notice from the UK Pensions Regulator relating to the issue of a contribution notice or financial support direction.

 

SECTION 5.10.  Defaults.  No Default or Unmatured Default has occurred and is continuing.

 

SECTION 5.11.  Regulation U.  Margin Stock constitutes less than 25% of those assets of the Parent and its Subsidiaries which are subject to any limitation on sale, pledge or other restriction hereunder.  Neither the Parent nor any Subsidiary is engaged, directly or indirectly, principally, or as one of its important activities, in the business of extending, or arranging for the extension of, credit for the purpose of purchasing or carrying Margin Stock.  No part of the proceeds of any Loan will be used in a manner which would violate, or result in a violation of, Regulation U.  Neither the making of any Advance hereunder nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation U.

 

SECTION 5.12.  Investment Company.  Neither the Parent nor any Subsidiary is, or after giving effect to any Advance will be, an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

SECTION 5.13.  Ownership of Properties.  As of the Amendment No. 1 Effective Date, after giving effect to the Reorganization, the Parent and its Subsidiaries have a subsisting leasehold interest in, or good and marketable title, free of all Liens, other than those permitted by Section 6.12 or by any of the other Loan Documents, to all of the properties and assets reflected in the most recent financial statements delivered pursuant to Section 6.01 on or prior to the Amendment No. 1 Effective Date as being owned by it, except for assets sold, transferred or otherwise disposed of in the ordinary course of business since the date thereof.  The Parent and its Subsidiaries own or possess rights to use all licenses, patents, patent applications, copyrights, service marks, trademarks and trade names necessary to continue to conduct their business as

 

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currently conducted, and no such license, patent or trademark has been declared invalid, been limited by order of any court or by agreement or is the subject of any infringement, interference or similar proceeding or challenge, except for proceedings and challenges which could not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.14.  Material Agreements.  Neither the Parent nor any Subsidiary is a party to any agreement or instrument or subject to any charter, Organization Document or other corporate (or other organizational) restriction which could reasonably be expected to have a Material Adverse Effect or which restricts or imposes conditions upon the ability of any Subsidiary (other than the Borrower) to (a) pay dividends or make other distributions on its capital stock, (b) make loans or advances to the Parent or (c) repay loans or advances from the Parent.  Neither the Parent nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.15.  Environmental Laws.  There are no claims, investigations, litigation, administrative proceedings, notices, requests for information, whether pending or threatened, or judgments or orders asserting violations of applicable federal, state and local environmental, health and safety statutes, regulations, ordinances, codes, rules, orders, decrees, directives and standards (“Environmental Laws”) or relating to any toxic or hazardous waste, substance or chemical or any pollutant, contaminant, chemical or other substance defined or regulated pursuant to any Environmental Law, including, without limitation, asbestos, petroleum, crude oil or any fraction thereof (“Hazardous Materials”) asserted against the Parent or any of its Subsidiaries which, in any case, could reasonably be expected to have a Material Adverse Effect.  Neither the Parent nor any Subsidiary has caused or permitted any Hazardous Materials to be Released, either on or under real property, currently or formerly, legally or beneficially owned or operated by Parent or any Subsidiary or on or under real property to which the Parent or any of its Subsidiaries transported, arranged for the transport or disposal of, or disposed of Hazardous Materials, which Release could reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.16.  Insurance.  The Parent and its Subsidiaries maintain, with financially sound and reputable insurance companies, insurance on their Property in such amounts and covering such risks as is consistent with sound business practice.

 

SECTION 5.17.  Insurance Licenses.  No material license, permit or authorization of the Parent or any Subsidiary to engage in the business of insurance or insurance-related activities is the subject of a proceeding for suspension or revocation, except where such suspension or revocation would not individually or in the aggregate have a Material Adverse Effect.

 

SECTION 5.18.  Disclosure.  As of the date hereof, none of the (a) information, exhibits or reports furnished by the Borrower or any Subsidiary to the Administrative Agent or to any Lender in connection with the negotiation of the Loan Documents (including for the avoidance of doubt the Confidential Information Memorandum but excluding any projections) or (b) representations or warranties of the Borrower or any Subsidiary contained in this Agreement, the

 

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other Loan Documents, or any other document, certificate or written statement furnished to the Administrative Agent or the Lenders by or on behalf of the Borrower or any Subsidiary for use in connection with the transactions contemplated by this Agreement, as the case may be, when taken together, as of the date of its delivery, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained herein or therein not materially misleading in light of the circumstances in which the same were made.  As of the date hereof, the projections that have been made available to the Administrative Agent or to any Lender by or on behalf of the Borrower or any Subsidiary have been prepared in good faith based upon accounting principles consistent with the historical audited financial statements of the Borrower (except as otherwise expressly disclosed in such projections) and upon assumptions that the Borrower believes to have been reasonable at the time made and at the time the related projections were made available to the Administrative Agent or to any Lender (it being understood that any such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, that no assurance can be given that such projections will be realized and that actual results may differ from such projections and that such differences may be material).  As of the date hereof, there is no fact known to the Borrower (other than matters of a general economic nature) that has had or could reasonably be expected to have a Material Adverse Effect and that has not been disclosed herein or in such other documents, certificates and statements furnished to the Lenders for use in connection with the transactions contemplated by this Agreement.

 

SECTION 5.19.  Solvency.  The Borrower and its Subsidiaries, on a consolidated basis immediately after giving effect to the Closing Date Transactions and the other transactions contemplated hereby to occur on the Closing Date (including without limitation, the funding of the Loans hereunder on the Closing Date and the application of the proceeds thereof), are Solvent.

 

SECTION 5.20.  Senior Debt.  The Obligations hereunder constitute “Senior Debt” (or the equivalent thereof) and “Designated Senior Debt” (or the equivalent thereof) under documentation governing subordinated Indebtedness permitted hereunder.

 

SECTION 5.21.  Foreign Corrupt Practices Act.  To the Knowledge of the Parent, as of the Amendment No. 1 Effective Date, it is in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977 (the “Foreign Corrupt Practices Act”) and any other United States and foreign Laws concerning corrupting payments, (ii) except to the extent as could not reasonably be expected to have a Material Adverse Effect, between January 1, 2008 and the Amendment No. 1 Effective Date and except as listed on Schedule 5.21 hereto, the Parent has not been investigated by any Governmental Authority with respect to, or been given notice by a Governmental Authority of, any violation by the Parent of the Foreign Corrupt Practices Act or any other United States or foreign Laws concerning corrupting payments and (iii) the Parent and its Subsidiaries have an operational Foreign Corrupt Practices Act/anticorruption compliance program that includes, at a minimum, policies, procedures and training intended to enhance awareness of and compliance by the Parent or such Subsidiary with the Foreign Corrupt Practices Act and any other applicable United States or foreign Laws concerning corrupting payments.

 

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signed by the chief financial officer of the Parent, describing said Termination Event and the action which the Parent or the Borrower, as applicable, proposes to take with respect thereto; provided that no such notice shall be required to be given unless either (i) such Termination Event could reasonably be expected to result in liabilities of the Parent or any member of the Controlled Group in excess of $25,000,000 in the aggregate or (ii) the occurrence of such Termination Event would trigger a requirement to deliver notice under Section 6.1(e) of the Revolving Credit Facility or Section 20.7(b) of the Euro Facility.

 

(f)         As soon as possible and in any event within ten (10) days after the Parent learns thereof, notice of the assertion or commencement of any claims, action, suit or proceeding against or affecting the Parent or any Subsidiary which may reasonably be expected to have a Material Adverse Effect.

 

(g)        Promptly upon learning thereof, notice of any change in the credit rating of the Borrower’s senior unsecured long term debt by S&P or Moody’s.

 

(h)        Promptly upon the furnishing thereof to the shareholders of the Parent, copies of all financial statements, reports and proxy statements so furnished (or links to pages on the Parent’s website where such information may be accessed).

 

(i)         Promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the Parent or any of its Subsidiaries files with the Securities and Exchange Commission (or links to pages on the Parent’s website where such information may be accessed).

 

(j)         Such other information (including, without limitation, non financial information and information required under the USA PATRIOT Act) as the Administrative Agent or any Lender may from time to time reasonably request.

 

SECTION 6.02.  Use of Proceeds.  The Borrower will, and will cause each Subsidiary to, use the proceeds of the Credit Extensions, solely to (a) refinance all of the outstanding amounts under the Existing Credit Agreement and (b) to pay fees and expenses incurred in connection with the Closing Date Transactions.  The Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds of the Advances, whether directly or indirectly, (i) to purchase or carry any “margin stock” (as defined in Regulation U) or to finance the acquisition of any Person which has not been approved and recommended by the board of directors (or functional equivalent thereof) of such Person or (ii) in violation of the Foreign Corrupt Practices Act and any other United States and foreign Laws concerning corrupting payments.

 

SECTION 6.03.  Notice of Default.  The Parent will give prompt notice in writing to the Lenders of the occurrence of (a) any Default or Unmatured Default and (b) any other event or development, financial or other, relating specifically to the Borrower or any of its Subsidiaries (and not of a general economic or political nature) which could reasonably be expected to have a Material Adverse Effect.

 

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SECTION 6.04.  Conduct of Business.  The Parent will, and will cause each Subsidiary to, (a) carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as is presently conducted by the Parent and its Subsidiaries, and will not, and will not permit any of its Subsidiaries to, engage in any business other than (i) businesses in the same fields of enterprise as now conducted by the Parent and its Subsidiaries or (ii) businesses that are reasonably related or incidental thereto or that, in the judgment of the board of directors of the Parent, are reasonably expected to materially enhance the other businesses in which the Parent and its Subsidiaries are engaged, and (b) do all things necessary to remain duly organized, validly existing and in good standing (or its equivalent, if any) in its jurisdiction of organization and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except where failure to be in such good standing (or the equivalent) or so qualified or authorized could not reasonably be expected to have a Material Adverse Effect; provided, however, that nothing in this Section 6.04 shall prohibit the dissolution or sale, transfer or other disposition of any Subsidiary that is not otherwise prohibited by this Agreement.

 

SECTION 6.05.  Taxes.  The Parent will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required by applicable law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside.

 

SECTION 6.06.  Insurance.  The Parent will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts and covering such risks as is consistent with sound business practice, and the Parent will furnish to the Administrative Agent and any Lender upon request full information as to the insurance carried.

 

SECTION 6.07.  Compliance with Laws.  The Parent will, and will cause each Subsidiary to, comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, the failure to comply with which could reasonably be expected to have a Material Adverse Effect.

 

SECTION 6.08.  Maintenance of Properties.  The Parent will, and will cause each Subsidiary to, do all things necessary to maintain, preserve, protect and keep its Property in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements so that its business carried on in connection therewith may be properly conducted at all times.

 

SECTION 6.09.  Inspection.  The Parent will, and will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective representatives and agents, to inspect any of the Property, corporate books and financial records of the Parent and each Subsidiary, to examine and make copies of the books of accounts and other financial records of the Parent and each Subsidiary, and to discuss the affairs, finances and accounts of the Parent

 

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obligations not more than sixty (60) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books;

 

(c)        Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;

 

(d)        Utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of the Parent or the Subsidiaries;

 

(e)        Banker’s liens, rights of set-off or similar rights in favor of a depository institution with respect to deposit accounts maintained with a depository institution in the ordinary course of business and securing obligations with respect to the maintenance of such accounts (and in no event securing any Indebtedness or other obligations);

 

(f)         Any Lien arising by operation of law in the ordinary course of business in respect of any obligation which is less than sixty (60) days overdue or which is being contested in good faith and by appropriate means and for which adequate reserves have been made;

 

(g)        Liens created by any of the Parent or its Subsidiaries over deposits and investments in the ordinary course of such Person’s insurance and reinsurance business to comply with the requirements of any regulatory body of insurance or insurance brokerage business;

 

(h)        Any Liens arising for the benefit of a credit institution pursuant to Clause 24 General Banking Conditions of the Netherlands Bankers Association (Algemene Voorwaarden van de Nederlandse Vereniging van Banken) in respect of any bank account held with a credit institution in the Netherlands;

 

(i)         Liens over and limited to the balance of credit balances on bank accounts of the Parent and its Subsidiaries created in order to facilitate the operation of such bank accounts and other bank accounts of the Parent and its Subsidiaries on a net balance basis with credit balances and debit balances on the various accounts being netted off for interest purposes;

 

(j)         Other Liens securing an aggregate principal amount of obligations at no time exceeding an amount equal to ten percent (10%) of Consolidated Net Worth at such time.

 

SECTION 6.13.  Affiliates.  The Parent will not, and will not permit any Subsidiary to, enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate except (a) for transactions between the Parent and any Wholly Owned Subsidiary of the Parent or between Wholly Owned Subsidiaries of the Parent, (b) in the ordinary course of business and pursuant to the reasonable requirements of the Parent’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to the Parent or such Subsidiary than the Parent or such Subsidiary would obtain in

 

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waives, releases and agrees not to sue for, any special, indirect, consequential or punitive damages suffered by any Loan Party in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby.

 

SECTION 9.11.  Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives, and third party settlement providers (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any Note or any action or proceeding relating to this Agreement or any Note or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions no less restrictive than those of this Section, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, (ii) 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 Borrower and its obligations, this Agreement or payments hereunder, (iii) any rating agency, (iv) the CUSIP Service Bureau or any similar organization or (v) to any credit insurance provider relating to the Borrower and its Obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than any Loan Party.

 

For purposes of this Section, “Information” means all information received from the Parent or any of its Subsidiaries relating to the Parent or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Parent or any of its Subsidiaries.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

Without limiting Section 9.04, each Loan Party agrees that the terms of this Section 9.11 shall set forth the entire agreement between the Loan Parties and each Lender (including the Administrative Agent) with respect to any confidential information previously or hereafter received by such Lender in connection with this Agreement, and this Section 9.11 shall supersede any and all prior confidentiality agreements entered into by such Lender with respect to such confidential information.

 

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(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) it has, independently and without reliance upon the Administrative 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 Administrative 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 any 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 and the form and substance of all evidence delivered in connection with establishing the satisfaction of each such condition; and

 

(iv)  the adequacy, accuracy and/or completeness of the information delivered by the Administrative 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 10.08.  No Other Duties, Etc.  Anything to the contrary herein notwithstanding, none of the Lenders (or Affiliates of Lenders) identified in this Agreement as the “Syndication Agent” or “Arrangers” or “Co-Arrangers” or “Co-Documentation Agents” shall have any right, power, obligation, liability, responsibility or duty under this Agreement in such identified capacity other than those (in the case of those who are Lenders) applicable to all Lenders as such.  Without limiting the foregoing, none of such Lenders (or Affiliates of Lenders) shall have or be deemed to have a fiduciary relationship with any Lender.  Each Lender hereby makes the same acknowledgments with respect to such Lenders (and such Affiliates) as it makes with respect to the Administrative Agent in Section 10.07.

 

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(B) in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 12.03.  The Administrative Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 12.03; provided, however, that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person.  Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents.  Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.

 

SECTION 12.02.  Participations.  (a) Permitted Participants; Effect.  Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in any Outstanding Credit Exposure of such Lender, any Note held by such Lender or any other interest of such Lender under the Loan Documents.  In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Outstanding Credit Exposure and the holder of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents.

 

(b)   Voting Rights.  Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Credit Extension in which such Participant has an interest which would require consent of all of the affected Lenders pursuant to the terms of Section 8.02 or of any other Loan Document.

 

(c)   Benefit of Certain Provisions.  The Borrower agrees that each Participant which has been identified as such to the Borrower in writing shall be deemed to have the right of setoff provided in Section 11.01 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents; provided, that each Lender shall retain the right of setoff provided in Section 11.01 with respect to the amount of participating interests sold to each Participant.  The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section 11.01, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in

 

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