FIVE YEAR TERM LOAN AGREEMENT
Dated as of February 15, 2005
CYTEC INDUSTRIES INC., a Delaware corporation (the "Company"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC., as lead
arranger and book manager, WACHOVIA BANK, NATIONAL ASSOCIATION and ABN AMRO BANK
N.V., as syndication agents, CALYON NEW YORK BRANCH, THE BANK OF NOVA SCOTIA and
SUNTRUST BANK, as documentation agents, and CITICORP NORTH AMERICA, INC.
("CNAI"), as administrative agent (the "Agent") for the Lenders (as hereinafter
defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" means the Company's acquisition of the Surface Specialties
business of UCB SA.
"Advance" means an advance by a Lender to any Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person.
"Agent's Account" means (a) in the case of Advances denominated in Dollars,
the account of the Agent maintained by the Agent at Citibank at its office
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 00000000,
Attention: Bank Loan Syndications, (b) in the case of Advances denominated
in Euros, the account of the Sub-Agent designated in writing from time to
time by the Agent to the Company and the Lenders for such purpose and (c)
in any such case, such other account of the Agent as is designated in
writing from time to time by the Agent to the Company and the Lenders for
such purpose.
"Agreement Value" means, for any Hedge Agreement on any date of
determination, the amount, if any, that would be payable to the Hedge Bank
party to such Hedge Agreement in respect of "agreement value" as though
such Hedge Agreement were terminated on such date, calculated as provided
in such Hedge Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means, for any date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
------------------------------- ----------------------------- ----------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurocurrency Rate Advances
------------------------------- ----------------------------- ----------------------------
------------------------------- ----------------------------- ----------------------------
Xxxxx 0
BBB+ or Baa1 or above 0.000% 0.750%
------------------------------- ----------------------------- ----------------------------
Level 2
BBB or Baa2 0.000% 0.875%
------------------------------- ----------------------------- ----------------------------
Xxxxx 0
XXX- xxx Xxx0 0.000% 1.000%
------------------------------- ----------------------------- ----------------------------
Xxxxx 0
XXX- xx Xxx0 0.125% 1.125%
------------------------------- ----------------------------- ----------------------------
Xxxxx 0
BB+ or Ba1 0.500% 1.500%
------------------------------- ----------------------------- ----------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 1.000% 2.000%
------------------------------- ----------------------------- ----------------------------
provided, for the period from the Effective Date until March 31, 2005, and
thereafter so long as the Leverage Ratio is greater than 3.50 to 1.00, the
Applicable Margin shall be increased by 0.125% per annum, such increase to
be determined by reference to the ratio in effect from time to time,
provided further that any change in the Applicable Margin based upon the
Leverage Ratio shall be effective on and as of the first day of each fiscal
quarter, determined by the financial statements required to be delivered
pursuant to Section 5.01(k) for the preceding fiscal quarter or fiscal
year, as the case may be, and the related certificate of the chief
financial officer of the Company demonstrating such ratio.
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
-------------------------------- -----------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
-------------------------------- -----------------------------
Level 1
BBB+ or Baa1 or above 0.125%
-------------------------------- -----------------------------
Level 2
BBB or Baa2 0.150%
-------------------------------- -----------------------------
Xxxxx 0
XXX- xxx Xxx0 0.175%
-------------------------------- -----------------------------
Xxxxx 0
XXX- xx Xxx0 0.250%
-------------------------------- -----------------------------
Xxxxx 0
BB+ or Ba1 0.300%
-------------------------------- -----------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.350%
-------------------------------- -----------------------------
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest
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three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance denominated in Dollars that bears
interest as provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous Advances of the
same Type made by each of the Lenders pursuant to Section 2.01.
"Borrowing Minimum" means, in respect of Advances denominated in Dollars,
$5,000,000 and in respect of Advances denominated in Euros,
(euro)5,000,000.
"Borrowing Multiple" means, in respect of Advances denominated in Dollars,
$1,000,000 and in respect of Advances denominated in Euros,
(euro)1,000,000.
"Borrowers" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurocurrency Rate Advances, on which dealings are
carried on in the London interbank market and banks are open for business
in London and in the country of issue of the currency of such Eurocurrency
Rate Advance (or, in the case of an Advance denominated in Euros, on which
the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open).
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Citibank" means Citibank, N.A.
"Commitment" means as to any Lender (a) the Dollar amount set forth
opposite such Lender's name on the signature pages hereof or (b) if such
Lender has entered into any Assignment and Acceptance, the Dollar amount
set forth for such Lender in the Register maintained by the Agent pursuant
to Section 9.07(d), as such amount may be reduced pursuant to Section 2.04.
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"Confidential Information" means information that the Company furnishes to
the Agent or any Lender on a confidential basis, but does not include any
such information that is or becomes generally available to the public or
that is or becomes available to the Agent or such Lender from a source
other than the Company.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables
not overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as capital
leases, (f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of credit,
(g) all Invested Amounts, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below and other payment obligations
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (2) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (3) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above secured
by (or for which the holder of such Debt 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, even though
such Person has not assumed or become liable for the payment of such Debt
(it being understood that the amount of such Debt described in this clause
(i) shall be deemed to be the lesser of the principal amount of such Debt
and the value of the property subject to such Lien).
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
"Designated Subsidiary" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated Subsidiary,
an agreement in the form of Exhibit E hereto signed by such Designated
Subsidiary and the Company.
"Dollars" and the "$" sign each means lawful currency of the United States
of America.
"Domestic Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum of
(a) interest expense, (b) income tax expense, (c) depreciation expense and
(d) amortization expense, (e) extraordinary or non-recurring non-cash
losses and (f) cash losses related to Hedge Agreements entered into between
4
October 1, 2004 and February 15, 2005 included in determining such net
income (or net loss), less (i) extraordinary or non-recurring non-cash
gains and (ii) cash gains related to Hedge Agreements entered into between
October 1, 2004 and February 15, 2005 included in determining such net
income (or net loss), in each case determined in accordance with GAAP for
such period. For the purposes of calculating EBITDA for any period, if
during such period the Company or any Subsidiary shall have made an
acquisition, EBITDA for such period shall be calculated after giving pro
forma effect thereto as if such acquisition occurred on the first day of
such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender and
(iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 9.07, the Company, such approval not to
be unreasonably withheld or delayed; provided, however, that neither the
Company nor an Affiliate of the Company shall qualify as an Eligible
Assignee.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, legal demand, demand letter, legal claim, notice of
non-compliance or violation, proceeding, consent order or consent agreement
relating to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health or
safety as it relates to any Hazardous Material or to the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or legally
binding judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health and safety as it relates
to any Hazardous Material or damage to natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equivalent" in Dollars of Euros on any date means the equivalent in
Dollars of Euros determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange Dollars for Euros
in London prior to 4:00 P.M. (London time) (unless otherwise indicated by
the terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in Euros of Dollars means the
equivalent in Euros of Dollars determined by using the quoted spot rate at
which the Sub-Agent's principal office in London offers to exchange Euros
for Dollars in London prior to 4:00 P.M. (London time) (unless otherwise
indicated by the terms of this Agreement) on such date as is required
pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Company's controlled group, or under common control with
the Company, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of
ERISA (without regard to subsection (2) of such Section) are met with
5
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days; (b) the application for
a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Company or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"EURIBO Rate" means, for any Interest Period, the rate appearing on Page
248 of the Moneyline Telerate Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service,
providing rate quotations comparable to those currently provided on such
page of such Service), as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits
in Euro by reference to the Banking Federation of the European Union
Settlement Rates for deposits in Euro) at approximately 10:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.07).
"Euro" means the lawful currency of the European Union as constituted by
the Treaty of Rome which established the European Community, as such treaty
may be amended from time to time and as referred to in the EMU legislation.
"Eurocurrency Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurocurrency Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Borrowing, (a) in the case of any
Advance denominated in Dollars, the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) appearing on Moneyline
Telerate Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period or, if for any reason such rate
is not available, the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars is offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
6
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurocurrency Rate Advance comprising part of
such Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period or, (b) in the case of any Advance
denominated in Euros, the EURIBO Rate. If the Moneyline Telerate Markets
Page 3750 (or any successor page) is unavailable, the Eurocurrency Rate for
any Interest Period for each Eurocurrency Rate Advance comprising part of
the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.07.
"Eurocurrency Rate Advance" means an Advance denominated in Dollars or
Euros that bears interest as provided in Section 2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurocurrency Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements (other
than non-financial commodities contracts).
"Hedge Bank" means any financial institution with which the Company has
entered into a Hedge Agreement.
"Information Memorandum" means the information memorandum dated November
15, 2004 used by the Agent in connection with the syndication of the
Commitments.
"Interest Expense" means the sum of interest on, and amortization of debt
discount, in respect of Debt of the Company and its Subsidiaries, plus the
discount or yield in respect of Invested Amounts for the period of time
under consideration. For the purposes of calculating Interest Expense for
any period, if during such period the Company or any Subsidiary shall have
7
made an acquisition, Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such acquisition occurred on
the first day of such period
"Interest Period" means, for each Eurocurrency Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the Borrower requesting such Borrowing pursuant to
the provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by such Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (c) of this definition, nine months,
as such Borrower may, upon notice received by the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) such Borrower may not select any Interest Period that ends after
the Maturity Date;
(b) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(c) in the case of any such Borrowing, such Borrower shall not be
entitled to select an Interest Period having duration of nine months
unless, by 2:00 P.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, each Lender notifies
the Agent that such Lender will be providing funding for such
Borrowing with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this Agreement
as an objection by such Lender to the requested duration of such
Interest Period); provided that, if any or all of the Lenders object
to the requested duration of such Interest Period, the duration of the
Interest Period for such Borrowing shall be one, two, three or six
months, as specified by such Borrower in the applicable Notice of
Borrowing as the desired alternative to an Interest Period of nine
months;
(d) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day; and
(e) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Invested Amounts" means the amounts invested by investors that are not
Affiliates of the Company in connection with a receivables securitization
program and paid to the Company or any of its Subsidiaries, as reduced by
the aggregate amounts received by such investors from the payment of
receivables and applied to reduce such invested amounts.
"Lenders" means the Initial Lenders and each Person that shall become a
party hereto pursuant to Section 9.07.
8
"Leverage Ratio" means, as of any date of determination, the ratio of Total
Consolidated Debt as at the end of the most recently ended fiscal quarter
of the Company for which financial statements are required to be delivered
pursuant to Section 5.01(k) to EBITDA on a Consolidated basis for the
Company and its Subsidiaries for the period of four most recently ended
fiscal quarters of the Company for which financial statements are required
to be delivered pursuant to Section 5.01(k).
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to real property.
"Loan Agreements" means this Agreement, the $700,000,000 364-Day Term Loan
Agreement, dated the date hereof, among the Company, the lenders parties
thereto and CNAI, as agent, and the $350,000,000 Five Year Credit
Agreement, dated the date hereof, among the Company, the lenders parties
thereto and CNAI, as agent.
"Loan Documents" means this Agreement, the Subsidiary Guaranty and the
Notes, if any.
"Loan Party" means each Borrower and each Subsidiary Guarantor, if any.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, or properties of
the Company and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, or properties of
the Company and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under any Loan Document or (c) the
ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party.
"Material Subsidiary" means, at any time, a Subsidiary of the Company
having at least 1% of the total Consolidated assets of the Company and its
Subsidiaries (determined as of the last day of the most recent fiscal
quarter of the Company) or at least 1% of the total Consolidated revenues
of the Company and its Subsidiaries for the twelve month period ending on
the last day of the most recent fiscal quarter of the Company.
"Maturity Date" means the earlier of (a) February 15, 2010 and (b) the date
of termination in whole of the Commitments pursuant to Section 2.04 or
6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset by the Company or any of its Subsidiaries,
the aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration)
by or on behalf of such Person in connection with such transaction after
deducting therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal and
accounting fees, filing fees, finder's fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with or as a
9
result of such transaction and (c) the amount of any Debt secured by a Lien
on such asset, in each case to the extent, but only to the extent, that the
amounts so deducted are either (i) at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of the Company or (ii)
other than in the case of amounts described in clause (c) above, recorded
as a current liability of the Company or any of its Subsidiaries, and in
each case, are properly attributable to such transaction or to the asset
that is the subject thereof.
"Note" means a promissory note of any Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.15 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the Advance
made by such Lender to such Borrower.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Payment Office" means such office of Citibank as shall be from time to
time selected by the Agent and notified by the Agent to the Company and the
Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b) hereof;
(b) Liens imposed by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Liens and other similar Liens arising in the
ordinary course of business securing obligations that are not overdue for a
period of more than 60 days unless such obligations are being contested in
good faith and by proper proceedings and as to which reserves required to
be maintained in accordance with GAAP are maintained; (c) pledges or
deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; and (d)
easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its present
purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the lowest rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Company. For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the Applicable Margin
and the Applicable Percentage shall be determined assuming that the other
rating agency's rating is set at the same level; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin
and the Applicable Percentage will be set in accordance with Level 6 under
the definition of "Applicable Margin" or "Applicable Percentage", as the
case may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin and the Applicable
Percentage shall be based upon the higher rating, provided that Level 3
shall not be available if the ratings established by S&P and Moody's shall
fall within different levels, and provided further that if the lower of
such ratings is more than one level below the higher of such ratings, the
Applicable Margin and Applicable Percentage Fee will be determined based on
the level immediately above the lower of such ratings (or two levels above
the lower of such ratings if the lower of such ratings is Level 3); (d) if
any rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or Moody's
10
shall change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Moody's, as the case may be,
shall refer to the then equivalent rating by S&P or Moody's, as the case
may be.
"Ratings Trigger" means the earlier of (a) the date that S&P reduces the
Public Debt Rating so that it is lower than BBB- or (b) the date that
Moody's reduces the Public Debt Rating so that it is lower than Baa3.
"Reference Banks" means Citibank, ABN AMRO Bank N.V. and Wachovia Bank,
National Association.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed in excess of 50% of the
then aggregate unpaid principal amount (based on the Equivalent in Dollars
at such time) of the Advances owing to Lenders, or, if no such principal
amount is then outstanding, Lenders having in excess of 50% of the
Commitments.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
"Significant Subsidiary" means, at any time, a Subsidiary of the Company
having at least 2% of the total Consolidated assets of the Company and its
Subsidiaries (determined as of the last day of the most recent fiscal
quarter of the Company) or at least 2% of the total Consolidated pro forma
revenues of the Company and its Subsidiaries for the twelve month period
ending on the last day of the most recent fiscal quarter of the Company.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Company
or any ERISA Affiliate and no Person other than the Company and the ERISA
Affiliates or (b) was so maintained and in respect of which the Company or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts
as they become absolute and matured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay such debts and liabilities as they mature and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light
of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
11
"Subsidiary Guarantors" means the wholly owned U.S. domestic Material
Subsidiaries of the Company that shall be required to execute and deliver a
guaranty pursuant to Section 5.01(l).
"Subsidiary Guaranty" has the meaning specified in Section 5.01(l)(i).
"Total Consolidated Debt" means all Debt that would, in accordance with
GAAP, appear on the Consolidated balance sheet of the Company and its
Subsidiaries.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right
so to vote has been suspended by the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. For purposes of calculating the financial
covenants hereunder, all accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles on the
date hereof ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to any Borrower on any single
Business Day during the period from the Effective Date until March 31, 2005 in
an aggregate amount (based in respect of any Advances to be denominated in Euros
by reference to the Equivalent thereof in Dollars determined on the date of
delivery of the applicable Notice of Borrowing) for all Borrowers not to exceed
such Lender's Commitment or, in the case of Advances to be denominated in Euros
not to exceed in the aggregate for all Lenders $350,000,000. Each Borrowing
shall be in an amount not less than the Borrowing Minimum or the Borrowing
Multiple in excess thereof and shall consist of Advances of the same Type and in
the same currency made on the same day by the Lenders ratably according to their
respective Commitments. Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurocurrency Rate
Advances denominated in Euros, or (z) 11:00 A.M. (New York City time) on the
first Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by any Borrower to the Agent (and,
in the case of a Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier or facsimile. Each such notice of a Borrowing (a "Notice
of Borrowing") shall be by telephone, confirmed immediately in writing, by
telecopier or facsimile in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount and currency of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurocurrency Rate
Advances, initial Interest Period.
Each Lender shall, before 11:00 A.M. (New York City time) on the date of
such Borrowing, in the case of a Borrowing consisting of Advances denominated in
Dollars, and before 11:00 A.M. (London time) on the date of such Borrowing, in
the case of a Borrowing consisting of Eurocurrency Rate Advances denominated in
12
Euros, make available for the account of its Applicable Lending Office to the
Agent at the applicable Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower requesting the Borrowing at
the Agent's address referred to in Section 9.02 or at the applicable Payment
Office, as the case may be.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
no Borrower may select Eurocurrency Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than the Borrowing Minimum or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurocurrency Rate
Advances may not be outstanding as part of more than twelve separate Borrowings.
(c) Each Notice of Borrowing of any Borrower shall be irrevocable and
binding on such Borrower. In the case of any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the
Borrower requesting such Borrowing shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower requesting
such Borrowing on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the Agent,
such Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Advances comprising such
Borrowing and (B) the cost of funds incurred by the Agent in respect of such
amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in the
case of Advances denominated in Dollars or (B) the cost of funds incurred by the
Agent in respect of such amount in the case of Advances denominated in Euros. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Commitment Fee. The Company agrees to pay to the
Agent for the account of each Lender a commitment fee on the unused portion of
such Lender's Commitment from the date hereof in the case of each Initial Lender
and from the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the earlier
of the date of the initial Borrowing and March 31, 2005 at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears on March 31, 2005.
(b) Agent's Fees. The Company shall pay to the Agent for its own account or
for the account of the Lenders such fees as may from time to time be agreed
between the Company and the Agent.
SECTION 2.04. Optional Termination or Reduction of the Commitments. The
Company shall have the right, upon at least two Business Days' notice to the
Agent, to terminate in whole or permanently reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
13
SECTION 2.05. Repayment of Advances. The Borrowers shall repay to the Agent
for the ratable account of the Lenders the aggregate outstanding principal
amount of the Advances on the following dates in the amounts indicated (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.09):
------------------------------------------ ------------------------
Date Amount
------------------------------------------ ------------------------
December 31, 2005 $72,500,000
------------------------------------------ ------------------------
December 31, 2006 $72,500,000
------------------------------------------ ------------------------
December 31, 2007 $72,500,000
------------------------------------------ ------------------------
December 31, 2008 $72,500,000
------------------------------------------ ------------------------
provided, however, that the final principal installment shall be repaid on the
Maturity Date and in any event shall be in an amount equal to the aggregate
principal amount of the Advances outstanding on such date.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance made to it and
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (x)
the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Advance
is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Advance to the sum of (x) the
Eurocurrency Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurocurrency Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), the Agent may, and upon the request of
the Required Lenders shall, require the Borrowers to pay interest ("Default
Interest") on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder upon demand
whether or not previously required by the Agent.
(c) Additional Interest on Eurocurrency Rate Advances. For so long as any
Lender maintains reserves against Eurocurrency Liabilities, each Borrower shall
pay to the Agent for the account of each such Lender additional interest on the
unpaid principal amount of each Eurocurrency Rate Advance of such Lender made to
it, from the date of such Advance until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder obtained by
subtracting, in the case of Advances, (a) the Eurocurrency Rate for the Interest
Period for such Advance from (b) the rate obtained by dividing such Eurocurrency
Rate by a percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage of such Lender for such Interest Period, payable on each date on
14
which interest is payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the applicable Borrower through the
Agent.
SECTION 2.07. Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurocurrency Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Agent for the purpose of determining any such
interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Company and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Advances as a part of such Borrowing during its Interest Period
or (ii) the Eurocurrency Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurocurrency Rate Advances for such Interest
Period, the Agent shall forthwith so notify the Company and the Lenders,
whereupon (A) the Borrower of such Eurocurrency Advances will, on the last day
of the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in Euros, either (x) prepay such Advances or (y)
exchange such Advances into an Equivalent amount of Dollars and Convert such
Advances into Base Rate Advances and (B) the obligation of the Lenders to make,
or to Convert Advances into, Eurocurrency Rate Advances shall be suspended until
the Agent shall notify the Company and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify such Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
(i) if such Eurocurrency Rate Advances are denominated in Dollars, Convert into
Base Rate Advances and (ii) if such Eurocurrency Rate Advances are denominated
in Euros, be exchanged for an Equivalent amount of Dollars and Convert into Base
Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than the Borrowing Minimum, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default,
(i) each Eurocurrency Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, (A) if such Eurocurrency Rate Advances
are denominated in Dollars, be Converted into Base Rate Advances and (B) if such
Eurocurrency Rate Advances are denominated in Euros, be exchanged for an
Equivalent amount of Dollars and be Converted into Base Rate Advances and (ii)
the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer than
two Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate for any Eurocurrency Rate Advances,
(i) the Agent shall forthwith notify the applicable Borrower and the
Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances,
(ii) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, Convert into a Base Rate Advance
15
and (B) if such Eurocurrency Rate Advance is denominated in Euros, be
prepaid by the applicable Borrower or be automatically exchanged for
an Equivalent amount of Dollars and be Converted into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or to Convert Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Company and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. The Borrower of any Advance
may on any Business Day, upon notice given to the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Advances denominated in Dollars of one Type comprising the same
Borrowing into Advances denominated in Dollars of the other Type; provided,
however, that any Conversion of Eurocurrency Rate Advances into Base Rate
Advances shall be made only on the last day of an Interest Period for such
Eurocurrency Rate Advances, any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to
be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances,
the duration of the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower giving such
notice.
SECTION 2.09. Prepayments of Advances. (a) Optional. Each Borrower may,
upon notice at least two Business Days' prior to the date of such prepayment, in
the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York
City time) on the date of such prepayment, in the case of Base Rate Advances, to
the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of not
less than the Borrowing Minimum or a Borrowing Multiple in excess thereof and
(y) in the event of any such prepayment of a Eurocurrency Rate Advance, such
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 9.04(c). Each such prepayment shall be applied to the installments of
the Advances in inverse order of maturity.
(b) Mandatory. (i) If the Company and its Subsidiaries shall have received
Net Cash Proceeds in excess of $25,000,000 from the sale, lease, transfer or
other disposition of any assets of the Company or any of its Subsidiaries (other
than any sale, lease, transfer or other disposition of assets (1) in the
ordinary course of business or (2) to the extent that the Net Cash Proceeds
thereof aggregate less than $10,000,000 in any calendar year), the Borrowers
shall be required to make a mandatory prepayment of Advances in an aggregate
amount equal to such Net Cash Proceeds in accordance with this Section
2.09(b)(i); provided, that, if the Borrower has previously made a mandatory
prepayment of Advances in accordance with this Section 2.09(b)(i), no further
mandatory prepayment shall be required until the amount of Net Cash Proceeds of
the nature described above again exceed $25,000,000; provided, further, that any
mandatory prepayment of Advances required to be made under this Section
2.09(b)(i) shall be in an amount equal to the amount of such Net Cash Proceeds
multiplied by a fraction the numerator of which is the aggregate principal
amount of the Advances and the denominator of which is the sum of the aggregate
principal amount of the Advances plus the aggregate amount of the advances
outstanding under the 364-Day Term Loan Agreement as of the date hereof among
the Company, the lenders parties thereto and CNAI, as administrative agent for
such lenders. Any mandatory prepayment of Advances required to be made pursuant
to this Section 2.09(b)(i) shall be made on the earlier of (1) the last day of
the Interest Period for any Advance ending after the date of receipt of such Net
Cash Proceeds (until all such Net Cash Proceeds have been prepaid) and (2) the
30th calendar day after the receipt thereof; provided, that, all such Net Cash
Proceeds shall have been applied to prepay Advances not later than the 30th
calendar day after the date that such Net Cash Proceeds exceed $25,000,000.
(ii) If, on any date, the Agent notifies the Company that, on any interest
payment date, the sum of (A) the aggregate principal amount of all Advances
denominated in Dollars then outstanding plus (B) the Equivalent in Dollars
16
(determined on the third Business Day prior to such interest payment date) of
the aggregate principal amount of all Advances denominated in Euros then
outstanding exceeds 105% of the aggregate Commitments of the Lenders on such
date, the Borrowers shall, as soon as practicable and in any event within two
Business Days after receipt of such notice, subject to the proviso to this
sentence set forth below, prepay the outstanding principal amount of any
Advances owing by the Borrowers in an aggregate amount sufficient to reduce such
sum to an amount not to exceed 100% of the aggregate Commitments of the Lenders
on such date together with any interest accrued to the date of such prepayment
on the aggregate principal amount of Advances prepaid; provided that if the
aggregate principal amount of Base Rate Advances outstanding at the time of such
required prepayment is less than the amount of such required prepayment, the
portion of such required prepayment in excess of the aggregate principal amount
of Base Rate Advances then outstanding shall be deferred until the earliest to
occur of the last day of the Interest Period of the outstanding Eurocurrency
Rate Advances in an aggregate amount equal to the excess of such required
prepayment. The Agent shall give prompt notice of any prepayment required under
this Section 2.09(b)(ii) to the Company and the Lenders, and shall provide
prompt notice to the Company of any such notice of required prepayment received
by it from any Lender.
(iii) If, on any date, the Agent notifies the Company that, on any interest
payment date the Equivalent in Dollars (determined on the third Business Day
prior to such interest payment date) of the aggregate principal amount of all
Advances denominated in Euros then outstanding exceeds $350,000,000, the
Borrowers shall, as soon as practicable and in any event within two Business
Days after receipt of such notice, subject to the proviso to this sentence set
forth below, prepay the outstanding principal amount of any Advances owing by
the Borrowers in an aggregate amount sufficient to reduce such sum to an amount
not to exceed the Equivalent in Dollars of $350,000,000 together with any
interest accrued to the date of such prepayment on the aggregate principal
amount of Advances prepaid; provided that such required prepayment shall be
deferred until the earliest to occur of the last day of the Interest Period of
the outstanding Eurocurrency Rate Advances in an aggregate amount equal to the
excess of such required prepayment. The Agent shall give prompt notice of any
prepayment required under this Section 2.09(b)(iii) to the Company and the
Lenders, and shall provide prompt notice to the Company of any such notice of
required prepayment received by it from any Lender.
(iv) Each prepayment made pursuant to this Section 2.09(b) shall be made
together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance on a date other than the last day of an Interest Period or at its
maturity, any additional amounts which the Borrowers shall be obligated to
reimburse to the Lenders in respect thereof pursuant to Section 9.04(c). Each
such prepayment shall be applied to the installments of the Advances in inverse
order of maturity. The Agent shall give prompt notice of any prepayment required
under this Section 2.09(c) to the Company and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the European
Union or similar monetary or multinational authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurocurrency Rate Advances (excluding
for purposes of this Section 2.10 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.13 shall govern) and (ii) changes in
the basis of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the laws of which
such Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Company shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such increased cost,
submitted to the Company and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, upon demand by such Lender (with a copy of such
demand to the Agent), the Company shall pay to the Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
17
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder. A certificate as to such amounts submitted to the Company and
the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.11. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or Euros or to fund or
maintain Eurocurrency Rate Advances in Dollars or Euros hereunder, (a) each
Eurocurrency Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (b) the obligation of the Lenders to make Eurocurrency
Rate Advances or to Convert Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) Each Borrower shall make each
payment hereunder (except with respect to principal of, interest on, and other
amounts relating to, Advances denominated in Euros), irrespective of any right
of counterclaim or set-off, not later than 11:00 A.M. (New York City time) on
the day when due in Dollars to the Agent at the applicable Agent's Account in
same day funds. Each Borrower shall make each payment hereunder with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in Euros, irrespective of any right of counterclaim or set-off, not later than
11:00 A.M. (at the Payment Office for Euros) on the day when due in Euros to the
Agent, by deposit of such funds to the applicable Agent's Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 2.10, 2.13 or 9.04(c)) to the Lenders for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Each Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of such
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be made by
the Agent on the basis of a year of 365 or 366 days, as the case may be, all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of commitment fees shall be made by the Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
fees are payable. Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from any Borrower prior to
the date on which any payment is due to the Lenders hereunder that such Borrower
will not make such payment in full, the Agent may assume that such Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
18
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Euros.
(f) To the extent that the Agent receives funds for application to the
amounts owing by any Borrower under or in respect of this Agreement or any Note
in currencies other than the currency or currencies required to enable the Agent
to distribute funds to the Lenders in accordance with the terms of this Section
2.12, the Agent shall be entitled to convert or exchange such funds into Dollars
or into Euros or from Dollars to Euros or from Euros to Dollars, as the case may
be, to the extent necessary to enable the Agent to distribute such funds in
accordance with the terms of this Section 2.12; provided that each Borrower and
each of the Lenders hereby agree that the Agent shall not be liable or
responsible for any loss, cost or expense suffered by such Borrower or such
Lender as a result of any conversion or exchange of currencies affected pursuant
to this Section 2.12(f) or as a result of the failure of the Agent to effect any
such conversion or exchange; and provided further that each Borrower agrees to
indemnify the Agent and each Lender, and hold the Agent and each Lender
harmless, for any and all losses, costs and expenses incurred by the Agent or
any Lender for any conversion or exchange of currencies (or the failure to
convert or exchange any currencies) in accordance with this Section 2.12(f).
SECTION 2.13. Taxes. (a) Any and all payments by each Borrower to or for
the account of any Lender or the Agent hereunder or under the Notes or any other
documents to be delivered hereunder shall be made, in accordance with Section
2.12 or the applicable provisions of such other documents, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.13) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes any other
documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for and hold it
harmless against the full amount of Taxes or Other Taxes (including, without
limitation, taxes of any kind imposed or asserted by any jurisdiction on amounts
payable under this Section 2.13) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each Borrower
shall furnish to the Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing such payment to the extent
such a receipt is issued therefor, or other written proof of payment thereof
that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
19
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as reasonably requested in writing by
the Company (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Company with two original Internal
Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. If the form provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Company and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Company with the appropriate form, certificate or other document described in
Section 2.13(e) (other than if such failure is due to a change in law, or in the
interpretation or application thereof, occurring subsequent to the date on which
a form, certificate or other document originally was required to be provided, or
if such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender shall not be entitled to indemnification
under Section 2.13(a) or (c) with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form, certificate or other
document required hereunder, the Company shall take such steps as the Lender
shall reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.13 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.10, 2.13 or 9.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
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SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. Each Borrower agrees that upon notice by any Lender to such
Borrower (with a copy of such notice to the Agent) to the effect that a Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Advances owing to, or to be
made by, such Lender, such Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d) shall
include a control account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iv) the amount of any sum received by the
Agent from such Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from each Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of any Borrower under this
Agreement.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
partial payment of the cash consideration of the Acquisition.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions have been
satisfied:
(a) There shall have occurred no Material Adverse Change since December 31,
2003.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or, to
the knowledge of the Company, threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the
consummation of the transactions contemplated hereby.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that
(i) the Information Memorandum (other than the financial projections
included therein), as supplemented by any filings made by the Company with
the Securities and Exchange Commission prior to December 3, 2004, 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
therein not misleading in light of the circumstances in which such
statements were made or (ii) the financial projections included in the
Information Memorandum were not prepared in good faith based upon
reasonable assumptions at the time prepared (it being understood that such
projections are subject to significant uncertainties and contingencies,
many of which are beyond the Company's control, and that no assurance can
be given that the projections will be realized); and without limiting the
generality
21
of the foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of the
Company and its Subsidiaries as they shall have requested.
(d) The Company shall have notified each Lender and the Agent in writing as
to the proposed Effective Date.
(e) The Company shall have paid all accrued fees (including the fees
described in the Information Memorandum) and expenses of the Agent and the
Lenders (including the invoiced accrued fees and expenses of counsel to the
Agent).
(f) On the Effective Date, the following statements shall be true and the
Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Company, dated the Effective
Date, stating that:
(i) The representations and warranties contained in Section 4.01 are
correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(g) The Agent shall have received on or before the Effective Date the
following, each dated the Effective Date, in form and substance
satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender
pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the Board of Directors of
the Company approving each Loan Document to which it is a party, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to each Loan Document to
which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of the
Company certifying the names and true signatures of the officers of
the Company authorized to sign each Loan Document to which it is a
party and the other documents to be delivered hereunder.
(iv) An environmental assessment update report dated June 30, 2004 in
form and scope reasonably satisfactory to the Lenders prepared by the
Company as to any material environmental hazards or liabilities to
which the Company or any of its Subsidiaries may be subject, and the
Lenders shall be reasonably satisfied that the amount and nature of
any such hazards or liabilities shall not be materially greater than
disclosed in the financial statements of the Company for the fiscal
quarter ended September 30, 2004 and with the Company's plans with
respect thereto.
(v) A favorable opinion of Xxx Xxxxx, General Counsel for the Company,
substantially in the form of Exhibit D hereto and as to such other
matters as any Lender through the Agent may reasonably request.
SECTION 3.02. Initial Advance to Each Designated Subsidiary. The obligation
of each Lender to make an initial Advance to each Designated Subsidiary is
subject to the receipt by the Agent on or before the date of such initial
Advance of each of the following, in form and substance reasonably satisfactory
to the Agent and dated such date:
(a) The Notes of such Designated Subsidiary to the order of the Lenders to
the extent requested by any Lender pursuant to Section 2.15.
22
(b) Certified copies of the resolutions of the Board of Directors of such
Designated Subsidiary (with a certified English translation if the original
thereof is not in English) approving this Agreement and the Notes to be
delivered by it, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement.
(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such Designated
Subsidiary authorized to sign its Designation Agreement and the Notes to be
delivered by it and the other documents to be delivered by it hereunder.
(d) A certificate signed by a duly authorized officer of the Company,
certifying that such Designated Subsidiary has obtained all governmental
and third party authorizations, consents, approvals (including exchange
control approvals) and licenses required under applicable laws and
regulations necessary for such Designated Subsidiary to execute and deliver
its Designation Agreement and the Notes to be delivered by it and to
perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated Subsidiary and
the Company.
(f) A favorable opinion of counsel (which may be in-house counsel) to such
Designated Subsidiary substantially in the form of Exhibit D hereto, and as
to such other matters as any Lender through the Agent may reasonably
request.
(g) Such other approvals, opinions or documents as any Lender through the
Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing. The obligation of
each Lender to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing:
(a) The following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by any Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representation set forth in the last sentence of
subsection (e) thereof) and, in the case of any Borrowing made to a
Designated Subsidiary, in the Designation Agreement for such
Designated Subsidiary, are correct on and as of such date, before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes a Default,
(iii) all governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby
shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect,
all applicable waiting periods in connection with the Acquisition
shall have expired without any action being taken by any competent
authority, and no law or regulation shall be applicable in the
reasonable judgment of the Lenders, in each case that restrains,
prevents or imposes materially adverse conditions upon the
transactions contemplated hereby, and
(iv) all conditions precedent to the consummation of the Acquisition
(other than the payment of cash consideration from, among other
sources, the proceeds of the initial Borrowing hereunder) shall have
been satisfied substantially in accordance with the terms of the Stock
and Asset Purchase Agreement dated as of October 1, 2004 between UCB
SA and the Company, as amended through February 8, 2005, without any
23
waiver or amendment not consented to by the Required Lenders of any
material term, provision or condition set forth therein, and in
compliance with all applicable laws.
(b) The Company's Public Debt Rating shall be not lower than BBB- from S&P
and not lower than Baa3 from Xxxxx'x.
(c) The Agent shall have received on or before the date of such Borrowing,
in form and substance satisfactory to the Agent and in sufficient copies for
each Lender, copies of the audited financial statements of the Surface
Specialties business of UCB SA as at December 31, 2003 prepared in accordance
with generally accepted accounting principles in Belgium; and
(d) The Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Determinations Under Section 3.01 and 3.02. For purposes of
determining compliance with the conditions specified in Sections 3.01 and 3.02,
each Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Agent, designates as the proposed Effective Date or the date of
the initial Advance to the applicable Designated Subsidiary, as the case may be,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date and each date of initial Advance to a
Designated Subsidiary, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) Each Loan Party is an entity duly organized and validly existing and,
if applicable to such entity, in good standing under the laws of its
jurisdiction of organization.
(b) The execution, delivery and performance by each Loan Party of each Loan
Document to which it is a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate or other
powers, have been duly authorized by all necessary corporate or other
action, and do not contravene (i) such Loan Party's charter or by-laws or
(ii) law or any contractual restriction (other than any immaterial
contractual restriction) binding on or affecting such Loan Party.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
any Loan Party of any Loan Document to which it is a party.
(d) This Agreement has been, and each of other Loan Documents to be
delivered by it when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and each of
other Loan Documents when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party party thereto enforceable against
such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as
at December 31, 2003, and the related Consolidated statements of income and
cash flows of the Company and its Subsidiaries for the fiscal year then
ended, accompanied by an opinion of KPMG LLP, independent public
accountants, and the Consolidated balance sheet of the Company and its
Subsidiaries as at September 30, 2004, and the related Consolidated
24
statements of income and cash flows of the Company and its Subsidiaries for
the nine months then ended, duly certified by the chief financial officer
of the Company, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at September 30,
2004, and said statements of income and cash flows for the nine months then
ended, to year-end audit adjustments, the Consolidated financial condition
of the Company and its Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2003, there
has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Company, threatened
action, suit, investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any other Loan Document or the consummation of the
transactions contemplated hereby.
(g) Following application of the proceeds of each Advance, not more than
25% of the value of the assets (either of the Company only or of the
Company and its Subsidiaries on a Consolidated basis) subject to the
provisions of Section 5.02(a) or 5.02(f) or subject to any restriction
contained in any agreement or instrument between the Company and any Lender
or any Affiliate of any Lender relating to Debt and within the scope of
Section 6.01(d) will be margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve System).
(h) Other than as set forth on Schedule 4.01(h), the operations and
properties of the Company and each of its Subsidiaries comply in all
respects with all applicable Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of the Company and its Subsidiaries, the Company
and its Subsidiaries are in compliance with all such Environmental Permits,
except to the extent that any such noncompliance or failure to obtain any
necessary permits would not be reasonably expected to have a Material
Adverse Effect, and to the knowledge of the Company, no circumstances exist
that would be reasonably expected to (i) form the basis of an Environmental
Action against the Company or any of its Subsidiaries or any of their
properties that would have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any applicable Environmental Law that would have a
Material Adverse Effect.
(i) Other than the properties set forth on Schedule 4.01(i) or such other
properties as to which a Material Adverse Effect would not reasonably be
expected to result, none of the properties currently or formerly owned or
operated by the Company or any of its Subsidiaries is listed or, to the
knowledge of the Company, proposed for listing on the National Priorities
List under CERCLA or on the CERCLIS or any analogous state list.
(j) Other than the locations set forth on Schedule 4.01(j) or such other
locations as to which a Material Adverse Effect would not reasonably be
expected to result, neither the Company nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous Materials
to any location that is listed or, to the knowledge of the Company,
proposed for listing on the National Priorities List under CERCLA or on the
CERCLIS or any analogous state list; other than as set forth on Schedule
4.01(j), Hazardous Materials have not been released or disposed of on any
property currently or formerly owned or operated by the Company or any of
its Subsidiaries in a manner which would reasonably be expected to result
in a Material Adverse Effect; and except to the extent failure to do so
would not reasonably be expected to result in a Material Adverse Effect,
all Hazardous Materials have been used, treated, handled, stored and
disposed of on such properties in compliance with all applicable
Environmental Laws and Environmental Permits.
25
(k) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan other than such ERISA Events as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(l) Schedule B (Actuarial Information) to the most recent annual report
(Form 5500 Series) for each Plan, copies of which will have been filed with
the Internal Revenue Service and furnished to the Agent is complete and
accurate in all material respects and fairly presents the funding status of
such Plan as of the date set forth therein, and since the date of such
Schedule B there has been no change in such funding status that would
reasonably be expected to result in a Material Adverse Effect.
(m) Neither the Company nor any of its ERISA Affiliates (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 414 of the Internal Revenue Code) has incurred or is reasonably
expected to incur any Withdrawal Liability to any Multiemployer Plan that
would reasonably be expected to result in a Material Adverse Effect.
(n) Except as would not reasonably be expected to result in a Material
Adverse Effect, neither the Company nor any of its ERISA Affiliates (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Section 414 of the Internal Revenue Code) has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and, to the best of the Company's knowledge, no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(o) Neither any Loan Party nor any of its Subsidiaries is an "investment
company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of any
Advances nor the application of the proceeds or repayment thereof by the
Company, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(p) Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
(q) None of the Loan Parties or any of their Subsidiaries is (i) named on
the list of Specially Designated Nationals or Blocked Persons maintained by
the U.S. Department of the Treasury's Office of Foreign Assets Control
available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx, or
(ii)(A) an agency of the government of a country, (B) an organization
controlled by a country, or (C) a person resident in a country that is
subject to a sanctions program identified on the list maintained by the
U.S. Department of the Treasury's Office of Foreign Assets Control and
available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx,
or as otherwise published from time to time, as such program may be
applicable to such agency, organization or person, and the proceeds from
any Advances hereunder will not be used to fund any operations in, finance
any investments or activities in, or make any payments to, any such
country, agency, organization or person.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA, except to
the extent that any such non-compliance, in the aggregate, would not have a
Material Adverse Effect.
26
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property except to the extent that any such
non-payment, in the aggregate, would not have a Material Adverse Effect;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and
as to which any reserves required to be maintained in accordance with GAAP
are maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and exercise its commercially reasonable efforts to cause all
lessees and other Persons occupying its properties to comply, with all
applicable Environmental Laws and Environmental Permits applicable to its
operations and properties except to the extent that the failure so to
comply would not reasonably be expected to result in a Material Adverse
Effect; obtain and renew all Environmental Permits necessary for its
operations and properties except to the extent that the failure to obtain
or renew any of such Environmental Permits would not reasonably be expected
to result in a Material Adverse Effect; and to the extent required by
Environmental Laws conduct, and cause each of its Subsidiaries to conduct,
any investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in all material respects in
accordance with the requirements of all applicable Environmental Laws
except to the extent that the failure so to comply would not reasonably be
expected to result in a Material Adverse Effect; provided, however, that
neither the Company nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and reserves appropriate in the reasonable judgment of the
Company and its accountants are being maintained with respect to such
circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Subsidiary operates; provided, however, that the Company and its
Subsidiaries may self-insure to the same extent as other companies engaged
in similar businesses and owning similar properties in the same general
areas in which the Company or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, material rights (charter and statutory) and material franchises;
provided, however, that the Company and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(b) and provided
further that neither the Company nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors of
the Company or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the loss thereof
is not materially disadvantageous to the Company and its Subsidiaries,
taken as a whole, or to the Lenders.
(f) Visitation Rights. At any reasonable time and from time to time, permit
the Agent or any of the Lenders or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Company and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants unless such
accountants reasonably object to such discussions.
(g) Preparation of Environmental Reports. If a Default caused by reason of
breach of Section 4.01(f) with respect to environmental matters (including,
without limitation, with respect to any Environmental Action), (h), (i) or
(j) or 5.01(c) shall have occurred and be continuing, at the reasonable
27
request of the Required Lenders through the Agent, provide to the Lenders
within 90 days after such request, at the expense of the Company, an
environmental site assessment report for the properties associated with
such Default and described in such request, prepared by an environmental
consulting firm acceptable to the Agent, indicating the presence or absence
of Hazardous Materials in violation of or requiring remediation under
Environmental Laws and the estimated cost of any compliance, removal or
remedial action in connection with any such Hazardous Materials on such
properties.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the assets and business of the
Company and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that
are necessary in the conduct of its business in good working order and
condition, ordinary wear and tear excepted, provided that neither the
Company nor any of its Subsidiaries shall be required to preserve any
properties if the Board of Directors of the Company or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Subsidiary, as the case may
be, and that the loss thereof is not materially disadvantageous to the
Company and its Subsidiaries, taken as a whole, or to the Lenders.
(j) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, other than with respect to transactions between
the Company and its wholly owned Subsidiaries or between wholly owned
Subsidiaries, all transactions otherwise permitted under this Agreement
with any of their Affiliates on terms that are fair and reasonable and no
less favorable to the Company or such Subsidiary (considered as a whole, in
conjunction with all other relationships and arrangements with such
Affiliates and consistent with prudent business practices) than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(k) Reporting Requirements. Furnish to the Agent (for distribution by the
Agent to the Lenders):
(i) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the
Company, the Consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Company and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Company as
having been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer of the
Company as to compliance with the terms of this Agreement and setting
forth in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03 and to determine the Leverage Ratio,
provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial
statements, the Company shall also provide, if necessary for the
determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a copy of the annual audit
report for such year for the Company and its Subsidiaries, containing
the Consolidated balance sheet of the Company and its Subsidiaries as
of the end of such fiscal year and Consolidated statements of income
and cash flows of the Company and its Subsidiaries for such fiscal
year, in each case accompanied by an opinion acceptable to the
Required Lenders by KPMG LLP or other independent public accountants
acceptable to the Required Lenders, and certificates of the chief
financial officer of the Company as to compliance with the terms of
this Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03 and to determine
28
the Leverage Ratio, provided that in the event of any change in
generally accepted accounting principles used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Company setting forth
details of such Default and the action that the Company has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, to the extent not
publicly available through the electronic data gathering and retrieval
facilities of the Securities and Exchange Commission (in which case
the Company shall promptly notify the Agent of the availability of
such information from such sources), copies of all reports that the
Company sends to its securityholders generally, and copies of all
reports and registration statements that the Company or any Subsidiary
files with the Securities and Exchange Commission or any national
securities exchange (other than any reports on Form 11-K and any
registration statements filed on Form S-8 or their equivalents);
(v) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator
affecting the Company or any of its Subsidiaries of the type described
in Section 4.01(f);
(vi) promptly after an officer of the Company knows or should know of
the occurrence thereof, notice of any condition or occurrence on any
property of the Company or any of its Subsidiaries that results in a
material noncompliance by or material liability with respect to the
Company or any of its Subsidiaries with any applicable Environmental
Law or Environmental Permit which would reasonably be expected to (A)
form the basis of an Environmental Action against the Company or any
of its Subsidiaries or such property that would be reasonably expected
to have a Material Adverse Effect or (B) cause any such property to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that would be reasonably
expected to have a Material Adverse Effect;
(vii) promptly and in any event within 15 days after the employee of
the Company responsible for ERISA matters or the employee of an ERISA
Affiliate responsible for ERISA matters knows or has reason to know
that any ERISA Event has occurred, a statement of the chief financial
officer of the Company describing such ERISA Event and the action, if
any, that the Company or such ERISA Affiliate has taken and proposes
to take with respect thereto;
(viii) promptly and in any event within three Business Days after
receipt thereof by the Company or any of its ERISA Affiliates (other
than one considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Internal Revenue Code), copies of each
notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any such Plan;
(ix) promptly and in any event within 30 days after the filing thereof
with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan;
(x) promptly and in any event within 10 Business Days after receipt
thereof by the Company or any of its ERISA Affiliates (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o)
of Section 414 of the Internal Revenue Code) from the sponsor of a
Multiemployer Plan, copies of each notice concerning (x) the
imposition of Withdrawal Liability by any such Multiemployer Plan, (y)
the reorganization or termination, within the meaning of Title IV of
29
ERISA, of any such Multiemployer Plan or (z) the amount of liability
incurred, or that may be incurred, by the Company or any of its ERISA
Affiliates in connection with any event described in clause (x) or
(y); and
(xi) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(l) Covenant to Guarantee Obligations. Upon the occurrence of the Ratings
Trigger, and thereafter upon the formation or acquisition of any new direct
or indirect wholly-owned U.S. domestic Material Subsidiary by any Loan
Party, the Company shall, in each case at the Company's expense:
(i) within 10 Business Days after the Ratings Trigger or such
formation or acquisition, cause each direct or indirect wholly-owned
U.S. domestic Material Subsidiary, and cause each direct and indirect
wholly-owned U.S. domestic parent of such Subsidiary (if it has not
already done so), to duly execute and deliver to the Agent (A) a
guaranty in substantially the form of Exhibit F hereto or a guaranty
supplement in the form attached thereto (each such guaranty or
guaranty supplement, together with each other guaranty and guaranty
supplement delivered pursuant to this Section 5.01(l), in each case as
amended, the "Subsidiary Guaranty"), duly executed by each such
Subsidiary, (B) certified copies of the resolutions of the Board of
Directors of such Subsidiary approving each Loan Document to which it
is a party, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to each Loan
Document to which it is a party and (C) a certificate of the Secretary
or an Assistant Secretary of such Subsidiary certifying the names and
true signatures of the officers of such Subsidiary authorized to sign
each Loan Document to which it is a party and the other documents to
be delivered hereunder.
(ii) within 30 days after the Ratings Trigger or such formation or
acquisition, deliver to the Agent, upon the request of the Agent in
its sole discretion, a signed copy of a favorable opinion, addressed
to the Agent and the Lenders, of counsel for the Loan Parties
acceptable to the Agent as to such guaranties and guaranty supplements
being legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms and as to such
other matters as the Agent may reasonably request, and
(iii) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such other
action as the Agent may reasonably deem necessary in obtaining the
full benefits of such guaranties.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or equipment
acquired or held by the Company or any of its Subsidiaries to secure
the purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition or
improvement of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other than any
such Liens created in contemplation of such acquisition that were not
incurred to finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same or a
lesser amount, provided, however, that no such Lien shall extend to or
cover any properties of any character other than the real property or
30
equipment being acquired or improved (except to the extent that
construction financing may result in an encumbrance on the underlying
fee or leasehold), and no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien
being extended, renewed or replaced, provided further that the
aggregate principal amount of the indebtedness secured by the Liens
referred to in this clause (ii) shall not exceed $200,000,000 at any
time outstanding,
(iii) the Liens existing on the Effective Date and described on
Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Subsidiary of the
Company or becomes a Subsidiary of the Company; provided that such
Liens were not created in contemplation of such merger, consolidation
or acquisition and do not extend to any assets other than those of the
Person so merged into or consolidated with the Company or such
Subsidiary or acquired by the Company or such Subsidiary,
(v) other Liens (A) securing Debt in an aggregate principal amount not
to exceed $50,000,000 at any time outstanding, or (B) that arise in
connection with receivables securitization programs, in an aggregate
principal amount not to exceed $150,000,000 at any time outstanding
(for purposes of this clause (B), the "principal amount" of a
receivables securitization program shall mean the Invested Amount),
(vi) Liens in respect of goods consigned to the Company or any of its
Subsidiaries in the ordinary course of business, including, without
limitation, goods which are the subject of tolling agreements or
manufacturing and servicing agreements to which the Company or any of
its Subsidiaries is a party; provided that such Liens are limited to
the goods so consigned and the goods which are the subject of such
agreements,
(vii) Liens securing Debt owed to the Company or to a wholly owned
Subsidiary of the Company; and
(viii) the replacement, extension or renewal of any Lien permitted by
clause (iii) or (iv) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any Material Subsidiary to do so,
except that (i) the Company may merge or consolidate with any other Person so
long as the Company is the surviving corporation and (ii) any Material
Subsidiary may merge or consolidate with or into, or convey, transfer, lease or
otherwise dispose of assets to (x) any other Subsidiary of the Company, (y) the
Company or (z) any other Person, and in the case of this clause (z), so long as
either (A) such Material Subsidiary is the surviving Person or (B) at least 75%
of the consideration therefor received by the Company or any of its Subsidiaries
is in the form of cash or other consideration that is converted into cash within
180 days after receipt thereof, provided, in each case, that no Default shall
have occurred and be continuing at the time of such proposed transaction or
would result therefrom.
(c) Subsidiary Debt. Permit any of its Subsidiaries that are not Subsidiary
Guarantors to create or suffer to exist, any Debt other than:
(i) Debt owed to the Company or to a wholly owned Subsidiary of the
Company,
31
(ii) Debt existing on the Effective Date and described on Schedule
5.02(c) hereto (the "Existing Debt"), and any Debt extending the
maturity of, or refunding or refinancing, in whole or in part, the
Existing Debt, provided that the principal amount of such Existing
Debt shall not be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not
be changed, as a result of or in connection with such extension,
refunding or refinancing,
(iii) Debt secured by Liens permitted by Section 5.02(a)(v)
aggregating for all of the Company's Subsidiaries not more than
$50,000,000 at any one time outstanding,
(iv) unsecured Debt and Invested Amounts aggregating not more than
$150,000,000 at any one time outstanding incurred by a special purpose
financing Subsidiary of the Company,
(v) unsecured Debt aggregating not more than $50,000,000 at any time
outstanding for all of the Company's Subsidiaries that are not
Subsidiary Guarantors not otherwise permitted by this subsection (c),
(vi) Debt incurred under the Loan Agreements,
(vii) Debt ("Acquired Debt") of any Person that becomes a Subsidiary
of the Company after the date hereof that is existing at the time such
Person becomes a Subsidiary of the Company (other than Debt incurred
in contemplation of such Person becoming a Subsidiary of the Company),
and any Debt extending the maturity of, or refunding or refinancing,
in whole or in part, such Acquired Debt, provided that the terms of
any such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in connection
therewith, are otherwise not prohibited by this Agreement and provided
further that the principal amount of such Acquired Debt shall not be
increased above the principal amount thereof (plus any undrawn lending
commitments in respect thereof) outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in
connection with such extension, refunding or refinancing, and
(viii) endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business.
(d) Accounting Changes. Make or permit any change in the accounting
policies or reporting practices applicable to the Company and its Consolidated
Subsidiaries, except as required or permitted by generally accepted accounting
principles.
(e) Change in Nature of Business. Make, or permit any of its Subsidiaries
to make, any material change in the fundamental nature of the business of the
Company and its Subsidiaries, taken as a whole, as carried on at the date
hereof.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Company will:
(a) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA of the
Company and its Subsidiaries to Interest Expense for the four quarters most
recently ended, in each case, by the Company and its Subsidiaries of not
less than 4.25:1.00.
(b) Debt to EBITDA Ratio. Maintain a ratio of Total Consolidated Debt to
Consolidated EBITDA of the Company and its Subsidiaries for the four
quarters most recently ended of not greater than the ratio set forth below
for each period set forth below:
32
-------------------------------- -------------------------------------
Quarter Ending Ratio
-------------------------------- -------------------------------------
December 31, 2004 4.75:1.00
-------------------------------- -------------------------------------
March 31, 2005 4.50:1.00
-------------------------------- -------------------------------------
June 30, 2005 4.25:1.00
-------------------------------- -------------------------------------
September 30, 2005 4.00:1.00
-------------------------------- -------------------------------------
December 31, 2005 3.75:1.00
-------------------------------- -------------------------------------
March 31, 2006 3.75:1.00
-------------------------------- -------------------------------------
June 30, 2006 3.25:1.00
-------------------------------- -------------------------------------
September 30, 2006 3.25:1.00
-------------------------------- -------------------------------------
December 31, 2006 and 3.00:1.00
thereafter
-------------------------------- -------------------------------------
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Company or any other Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the Company or any
other Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or any
Note within three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party in any Loan
Document or by any Loan Party (or any of its officers) in connection with
any Loan Document shall prove to have been incorrect in any material
respect when made; or
(c) (i) The Company shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(e), (f), (j) or (k), 5.02 or 5.03, or
(ii) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Company by the
Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any Debt that is outstanding in a principal
amount of at least $25,000,000 (or the equivalent thereof in any other
currency) or any Hedge Agreement the Agreement Value of which is at least
$25,000,000 (or the equivalent thereof in any other currency) in the
aggregate (but excluding Debt outstanding hereunder) of the Company or such
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt or Hedge Agreement; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt or Hedge
Agreement and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt or Hedge Agreement; or any such Debt shall be declared to be
due and payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
33
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) The Company or any of its Significant Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Company or any of its Significant Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Company or any of its Significant Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Judgments or orders for the payment of money in excess of $25,000,000
(or the equivalent thereof in any other currency) in the aggregate shall be
rendered against the Company or any of its Significant Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
20 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(g) Any non-monetary judgment or order shall be rendered against the
Company or any of its Subsidiaries that would be reasonably expected to
have a Material Adverse Effect, and there shall be any period of 20
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(h) (i) Any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 35% or more of
the combined voting power of all Voting Stock of the Company; (ii) during
any period of up to 24 consecutive months, commencing after the date of
this Agreement, individuals who at the beginning of such 24-month period
were directors of the Company shall cease for any reason to constitute a
majority of the board of directors of the Company (except to the extent
that individuals who at the beginning of such 24-month period were replaced
by individuals (x) elected by a majority of the remaining members of the
board of directors of the Company or (y) nominated for election by a
majority of the remaining members of the board of directors of the Company
and thereafter elected as directors by the shareholders of the Company); or
(iii) any Person or two or more Persons acting in concert (other than
directors or officers of the Company and its Subsidiaries) shall have
acquired by contract or otherwise, a controlling influence over the
management or policies of the Company; or
(i) Any ERISA Event shall have occurred in an amount exceeding $25,000,000;
or
(j) The Company or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan for which the Company would reasonably
be expected to become liable in an amount that, when aggregated with all
other amounts required to be paid to Multiemployer Plans by the Company and
its ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $25,000,000 or requires payments exceeding
$5,000,000 per annum; or
35
(k) The Company or any of its ERISA Affiliates shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, the Company is reasonably expected to become liable in connection
with such reorganization or termination and as a result of such
reorganization or termination the aggregate annual contributions of the
Company and its ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years of
such Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding $5,000,000; or
(l) so long as any Subsidiary of the Company is a Designated Subsidiary,
any provision of Article VII shall for any reason cease to be valid and
binding on or enforceable against the Company, or the Company shall so
state in writing; or
(m) any provision of any Subsidiary Guaranty shall for any reason cease to
be valid and binding on or enforceable against any Subsidiary Guarantor, or
any Subsidiary Guarantor shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company and the other
Borrowers, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Company and the other Borrowers, declare the Advances, all interest thereon and
all other amounts payable under this Agreement and the other Loan Documents to
be forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Company hereby absolutely, unconditionally and
irrevocably guarantees, as a guarantee of payment and not of collection, the
punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all obligations
of each other Borrower now or hereafter existing under or in respect of this
Agreement and the Notes (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all out-of-pocket expenses (including,
without limitation, reasonable fees and expenses of outside counsel) incurred by
the Agent or any other Lender in enforcing any rights under this Article VII.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any such Borrower to the Agent or any Lender under or in
respect of this Agreement or the Notes but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Borrower.
SECTION 7.02. Guaranty Absolute. The Company guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of this Agreement
and the Notes, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The obligations of the Company under or in respect
of this Article VII are independent of the Guaranteed Obligations or any other
obligations of any other Borrower under or in respect of this Agreement and the
Notes, and a separate action or actions may be brought and prosecuted against
the Company to enforce this Article VII, irrespective of whether any action is
brought against any Borrower or whether any Borrower is joined in any such
35
action or actions. The liability of the Company under this Article VII shall be
irrevocable, absolute and unconditional irrespective of, and the Company hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement (other than
this Article VII), the Notes or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other obligations
of any Borrower under or in respect of this Agreement or the Notes, or any
other amendment or waiver of or any consent to departure from this
Agreement or the Notes, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or
any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other obligations of any Borrower under this Agreement or the Notes
or any other assets of any Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of any Borrower or any of its Subsidiaries;
(f) any failure of any Lender or the Agent to disclose to the Company any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Borrower now or
hereafter known to such Lender or the Agent (the Company waiving any duty
on the part of the Lenders and the Agent to disclose such information); or
(g) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by any
Lender or the Agent that might otherwise constitute a defense available to,
or a discharge of, any Borrower or any other guarantor or surety.
This Article VII shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or the Agent or any other
Person upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Article VII and any requirement that
any Lender or the Agent protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any
Borrower or any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any right to
revoke this Article VII and acknowledges that the guaranty under this Article
VII is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by any Lender or the Agent that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Company or other
rights of the Company to proceed against any Borrower, any other guarantor or
36
any other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the obligations of the Company
hereunder.
(d) The Company hereby unconditionally and irrevocably waives any duty on
the part of any Lender or the Agent to disclose to the Company any matter, fact
or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Borrower or any of its
Subsidiaries now or hereafter known by such Lender or the Agent.
(e) The Company acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and the Notes and that the waivers set forth in Section 7.02 and this Section
7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against any Borrower or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Company's obligations
under or in respect of this Article VII, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of any
Lender or the Agent against any Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Company in
violation of the immediately preceding sentence at any time prior to the later
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Article VII and (b) the Maturity Date, such amount
shall be received and held in trust for the benefit of the Lenders and the
Agent, shall be segregated from other property and funds of the Company and
shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Article VII, whether matured or unmatured, in accordance with the terms of this
Agreement, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Article VII thereafter arising. If (i) the Company
shall make payment to any Lender or the Agent of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Article VII shall have been paid in full in cash and
(iii) the Maturity Date shall have occurred, the Lenders and the Agent will, at
the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment made by the Company
pursuant to this Article VII.
SECTION 7.05. Continuing Guaranty; Assignments. The guaranty under this
Article VII is a continuing guaranty and shall (a) remain in full force and
effect until the later of (i) the indefeasible payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Article VII and
(ii) the Maturity Date, (b) be binding upon the Company, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Lenders and
the Agent and their successors, transferees and assigns. Without limiting the
generality of clause (c) of the immediately preceding sentence, any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each
case as and to the extent provided in Section 9.07. The Company shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
ARTICLE VIII
THE AGENT
37
SECTION 8.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other the Loan Documents
as are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or applicable law. The
Agent agrees to give to each Lender prompt notice of each notice given to it by
the Company or any other Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.07; (ii) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with the Loan Documents; (iv) shall not have
any duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of the Loan Documents
on the part of any Loan Party or the existence at any time of any Default or to
inspect the property (including the books and records) of the Company or any
other Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier or facsimile) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 8.03. CNAI and Affiliates. With respect to its Commitment, the
Advances made by it and the Note issued to it, CNAI shall have the same rights,
powers and duties under the Loan Documents as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include CNAI in its individual
capacity. CNAI and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own securities of the
Company or any such Subsidiary, all as if CNAI were not the Agent and without
any duty to account therefor to the Lenders. The Agent shall have no duty to
disclose information obtained or received by it or any of its Affiliates
relating to the Company or its Subsidiaries to the extent such information was
obtained or received in any capacity other than as Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Company), ratably according to the respective
principal amounts of the Advances then owed to each of them (or if no Advances
are at the time outstanding, ratably according to the respective amounts of
their Commitments), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by the Agent under the Loan
38
Documents (collectively, the "Indemnified Costs"), provided that no Lender shall
be liable for any portion of the Indemnified Costs resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, the Loan Documents that are payable by the
Company hereunder, to the extent that the Agent is not reimbursed for such
expenses by the Company. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 8.05 applies
whether any such investigation, litigation or proceeding is brought by the
Agent, any Lender or a third party.
SECTION 8.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under this
Agreement to carry out duties of the Agent. The Sub-Agent shall be subject to
each of the obligations in this Agreement to be performed by the Sub-Agent, and
each of the Company, each other Borrower and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be entitled
to each of the benefits of the Agent under this Agreement as relate to the
performance of its obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges that no
syndication agent and no documentation agent nor any other Lender designated as
any "Agent" (other than the Agent) on the signature pages or the cover hereof
has any liability hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by any Loan Party therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase or extend the Commitments of
the Lenders, (c) reduce the principal of, or interest on, the Advances or any
fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Advances, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, (f) reduce or limit the obligations of the Company under Section 7.01
or release or otherwise limit the Company's liability with respect to its
obligations under Article VII, (g) reduce or limit the obligations of any
Subsidiary Guarantor under Section 1 of its Subsidiary Guaranty or release or
otherwise limit any Subsidiary Guarantor's liability with respect to its
obligations under its Subsidiary Guaranty (other than as provided in the
Subsidiary Guaranty), provided, that the Subsidiary Guaranties shall be
terminated by the Agent if the Public Debt Rating is BBB- (stable) from S&P and
Baa3 (stable) from Xxxxx'x without the consent of any of the Lenders, or (h)
amend this Section 9.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or the other Loan Documents.
39
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
facsimile communication) and mailed, telecopied or delivered or (y) to the
extent set forth in Section 8.02(b) and in the proviso to this Section 9.02(a),
by electronic mail confirmed immediately in writing, if to the Company, at its
address at Five Xxxxxx Xxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000,
Attention: Treasurer; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at Xxx Xxxxx Xxx,
Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; or, as
to the Company or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Company and the Agent; provided that materials required to be delivered
pursuant to Section 5.01(k)(i), (ii) and (iv) shall be delivered to the Agent as
specified in Section 9.02(b) or as otherwise specified to the Company by the
Agent. All such notices and communications shall, when mailed, telecopied or
e-mailed, be effective when deposited in the mails, telecopied or confirmed by
e-mail, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VII shall not be effective until received by the
Agent. Delivery by telecopier or facsimile of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) Materials required to be delivered pursuant to Section 5.01(k)(i), (ii)
and (iv) shall be delivered to the Agent in an electronic medium in a format
acceptable to the Agent by e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Company
agrees that the Agent may make such materials, as well as any other written
information, documents, instruments and other material relating to the Company,
any of its Subsidiaries or any other materials or matters relating to this
Agreement, the Notes or any of the transactions contemplated hereby
(collectively, the "Communications") available to the Lenders by posting such
notices on Intralinks or a substantially similar electronic system reasonably
approved by the Company (the "Platform"). Although the primary web portal is
secured with a dual firewall and a User ID/Password Authorization System and the
Platform is secured through a single user per deal authorization method whereby
each user may access the Platform only on a deal-by-deal basis, the Company
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is" and "as
available" and (iii) neither the Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next sentence)
(a "Notice") specifying that any Communications have been posted to the Platform
shall constitute effective delivery of such information, documents or other
materials to such Lender for purposes of this Agreement. Each Lender agrees (i)
to notify the Agent in writing of such Lender's e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on demand
all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the other Loan Documents and the other documents to be delivered
hereunder, including, without limitation, (A) all reasonable due diligence,
40
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Company further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the other Loan Documents and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Notes, this Agreement, any other Loan Document,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Company or any of its Subsidiaries or any
Environmental Action relating in any way to the Company or any of its
Subsidiaries (but excluding any such claim, damage, loss, liability or expense
(A) to the extent resulting from such Indemnified Party's gross negligence or
willful misconduct or (B) arising from a successful claim by the Company against
such Indemnified Party). In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Company, its directors, equityholders or creditors
or an Indemnified Party or any other Person, whether or not any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Company also agrees not to assert any
claim for special, indirect, consequential or punitive damages against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, arising out of or otherwise relating to the Notes, this Agreement,
the other Loan Documents, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate
Advance is made by any Borrower to or for the account of a Lender (i) other than
on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.07, 2.09 or 2.11, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any other reason, or
by an Eligible Assignee to a Lender other than on the last day of the Interest
Period for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 9.07 as a result of a demand by the Company
pursuant to Section 9.07(a) or (ii) as a result of a payment or Conversion
pursuant to Section 2.07, 2.09 or 2.11, such Borrower shall, upon demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance. If the amount of Euros purchased by any Lender in
the case of a Conversion or exchange of Advances in the case of Section 2.07 or
2.11 exceeds the sum required to satisfy such Lender's liability in respect of
such Advances, such Lender agrees to remit to the Company such excess.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Company or any Borrower
against any and all of the obligations of the Company or any Borrower now or
41
hereafter existing under this Agreement and the Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the appropriate Borrower after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Company and the Agent and when the Agent shall have been notified by each
Initial Lender that such Initial Lender has executed it and thereafter shall be
binding upon and inure to the benefit of the Company, the Agent and each Lender
and their respective successors and assigns, except that neither the Company nor
any other Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may and, if
demanded by the Company (following a demand by such Lender pursuant to Section
2.10 or 2.13) upon at least five Business Days' notice to such Lender and the
Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Company and the
Agent otherwise agree, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Company
pursuant to this Section 9.07(a) shall be arranged by the Company after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Company pursuant to this Section 9.07(a) unless and until such Lender shall
have received one or more payments from either the Company or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Company, such
recordation fee shall be payable by the Company except that no such recordation
fee shall be payable in the case of an assignment made at the request of the
Company to an Eligible Assignee that is an existing Lender, and (vii) any Lender
may, without the approval of the Company and the Agent, assign all or a portion
of its rights to any of its Affiliates. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights (other than its rights
under Section 2.10, 2.13 and 9.04 to the extent any claim thereunder relates to
an event arising prior such assignment) and be released from its obligations
(other than its obligations under Section 8.05 to the extent any claim
thereunder relates to an event arising prior such assignment) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
42
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or any other Borrower or the performance or observance by any Loan Party
of any of its obligations under this Agreement, any Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section 9.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Company, the other
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Company or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Company, the other Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any other Loan Document, or any
consent to any departure by the Company or any other Loan Party therefrom,
except to the extent that such amendment, waiver or consent would reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or postpone
any date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to any Borrower furnished to such Lender by or on behalf of such
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to any Borrower
received by it from such Lender.
43
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Company, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and, as contemplated by
Section 9.07(f), to actual or prospective assignees and participants, and then,
in each case, only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to any
Borrower received by it from such Lender, (d) as requested (after notice to the
Company to the extent practicable) or required by any state, federal or foreign
authority or examiner regulating banks or banking and (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder or under any other Loan
Document.
SECTION 9.09. Designated Subsidiaries. (a) Designation. The Company may at
any time, and from time to time, by delivery to the Agent of a Designation
Agreement duly executed by the Company and the respective Subsidiary and
substantially in the form of Exhibit E hereto, designate such Subsidiary as a
"Designated Subsidiary" for purposes of this Agreement and such Subsidiary shall
thereupon become a "Designated Subsidiary" for purposes of this Agreement and,
as such, shall have all of the rights and obligations of a Borrower hereunder.
The Agent shall promptly notify each Lender of each such designation by the
Company and the identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of the
indebtedness, liabilities and obligations under this Agreement of any Designated
Subsidiary then, so long as at the time no Notice of Borrowing in respect of
such Designated Subsidiary is outstanding, such Subsidiary's status as a
"Designated Subsidiary" shall terminate upon notice to such effect from the
Agent to the Lenders (which notice the Agent shall give promptly, and only upon
its receipt of a request therefor from the Company). Thereafter, the Lenders
shall be under no further obligation to make any Advance hereunder to such
Designated Subsidiary.
SECTION 9.10. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 9.11. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier or facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.12. Judgment. (a) If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase Dollars with
such other currency at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(b) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder in Euros into Dollars, the parties agree to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase Euros with Dollars at Citibank's principal office in London at
11:00 A.M. (London time) on the Business Day preceding that on which final
judgment is given.
(c) The obligation of the Company and each other Borrower in respect of any
sum due from it in any currency (the "Primary Currency") to any Lender or the
Agent hereunder shall, notwithstanding any judgment in any other currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be), of any sum adjudged to be so due in
such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
44
the case may be) in the applicable Primary Currency, the Company and each other
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Lender or the Agent (as the case may be) against such loss,
and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable
Primary Currency, such Lender or the Agent (as the case may be) agrees to remit
to the Company or such other Borrower such excess.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. The Company and each other Borrower hereby
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to the Company at its address specified
pursuant to Section 9.02. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 9.14. Patriot Act. Each Lender hereby notifies each Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies each borrower, guarantor or
grantor hereunder, which information includes the name and address of each
borrower, guarantor or grantor hereunder and other information that will allow
such Lender to identify such borrower, guarantor or grantor hereunder in
accordance with the Act.
45
SECTION 9.15. Waiver of Jury Trial. Each of the Company, each other
Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial
by jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement or any other
Loan Document or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CYTEC INDUSTRIES INC.
By /s/
Title:
CITICORP NORTH AMERICA, INC.,
as Agent
By /s/ Xxxxxxx X Xxxxxxxx
-----------------------
Title: Managing Director & Vice
President
Initial Lenders
---------------
Commitment
----------
Arranger
--------
$94,418,604.65 CITICORP NORTH AMERICA, INC.
By /s/ Xxxxxxx X Xxxxxxxx
----------------------
Title: Managing Director & Vice
President
Syndication Agents
------------------
$84,302,325.58 ABN AMRO BANK N.V.
By /s/
Title: Director
By /s/
Title: Associate
$84,302,325.58 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/
Title: Director
46
Documentation Agents
--------------------
$53,953,488.37 CALYON NEW YORK BRANCH
By /s/ Xxxxx X Xxxxxxxxx
---------------------
Title: Director
By /s/ Xxxxxxx Xxxxxxx
--------------------
Title: Director
$53,953,488.37 THE BANK OF NOVA SCOTIA
By /s/ Xxxx X Xxxxxx
------------------
Title: Managing Director
$53,953,488.37 SUNTRUST BANK
By /s/ Xxxxxx Xxxxxx
-----------------
Title: Director
Lenders
-------
$37,093,023.26 THE BANK OF NEW YORK
By /s/ Xxxxxx Xxxx
----------------
Title: Vice President
$37,093,023.26 COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/
Title: Senior Vice President
By /s/
Title: Vice President
$37,093,023.26 FORTIS CAPITAL CORP.
By /s/ Xxxxxxxx de Lathauwer
-------------------------
Title: Senior Vice President
By /s/ Xxxx X Xxxxxx
-----------------
Title: Senior Vice President
$37,093,023.26 BAYERISCHE HYPO-UND VERSEINSBANK AG,
NEW YORK BRANCH
By /s/
Title: Director
By /s/
Title: Associate
47
$37,093,023.26 PNC BANK, NATIONAL ASSOCIATION
By /s/
Title: Senior Vice President
$37,093,023.26 SUMITOMO MITSUI BANKING CORP.,
NEW YORK
By /s/ Xxxxxx XxXxxxx
-------------------
Title: Vice President & Dept. Head
$33,720,930.23 UFJ BANK LIMITED
By /s/
Title:
$23,604,651.16 BANK OF CHINA, NEW YORK BRANCH
By /s/
Title: Chief Lending Officer
$20,232,558.14 KBC BANK, N.V.
By /s/ Xxxxxx M Surdamur
---------------------
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
-------------------
Title: First Vice President
$725,000,000 Total of the Commitments
48
SCHEDULE I
CYTEC INDUSTRIES INC.
FIVE YEAR TERM LOAN AGREEMENT
APPLICABLE LENDING OFFICES
---------------------------------------- -------------------------------------- --------------------------------------
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office
---------------------------------------- -------------------------------------- --------------------------------------
---------------------------------------- -------------------------------------- --------------------------------------
ABN AMRO Bank N.V. 000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Loan Administration Attn: Loan Administration
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
Bank of China, New York Branch 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xx Attn: Xxxxxx Xx
T: 000 000-0000 x000 T: 000 000-0000 x000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
The Bank of New York Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx
21st Floor 21st Floor
New York, NY 10286 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx Attn: Xxxxx Xxxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
The Bank of Nova Scotia One Liberty Plaza Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx Attn: Xxxxxxx Xxxxxxxx
T: 000 000-0000 T: 000 000-0000
F: 212 225-5254 F: 212 225-5254
---------------------------------------- -------------------------------------- --------------------------------------
Bayerische Hypo-und Versinsbank AG, 000 Xxxx 00xx Xxxxxx 150 East 42nd Street
New York Branch Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxx Xxx Xxxx Xxxxxx 0000 Xxxxxx of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx Attn: Xxxxx Xxxxxxxx
T: 000 0000-0000 T: 000 0000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
Citicorp North America, Inc. Two Penns Way Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
Commerzbank AG 2 World Financial Center 2 World Financial Center
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx Attn: Xxxxxx Xxxxxxxxx
T: 212 266-7562 T: 212 266-7562
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
---------------------------------------- -------------------------------------- --------------------------------------
Fortis Capital Corp. 0 Xxxxxxxx Xxxxx 0 Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
KBC Bank, N.V. 000 Xxxx 00xx Xxxxxx, 00xx Floor 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
PNC Bank, National Association First Side Center, 000 Xxxxx Xxxxxx First Side Center, 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxx (Xxxx) Xxxxxxxxxx Attn: Xxxx (Xxxx) Xxxxxxxxxx
T: 000 000-0000 T: 412 768-9973
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
Sumitomo Mitsui Banking Corp., New York 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx Xxxxxxx Attn: Xxxxxxxx Xxxx Xxxxxxx
T: 212 224-4392 T: 212 224-4392
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
SunTrust Bank 000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X.
10th Floor, Mail Code 1941 10th Floor, Mail Code 1941
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
T: 000 000-0000 T: 000 000-0000
F: 000 000-0000 F: 000 000-0000
---------------------------------------- -------------------------------------- --------------------------------------
UFJ Bank Limited 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
T: 000 000-0000 T: 000 000-0000
F: 212 754-2368 F: 212 754-2368
---------------------------------------- -------------------------------------- --------------------------------------
Wachovia Bank, National Association 000 X. Xxxxxxx Xxxxxx 000 X. Xxxxxxx Xxxxxx
17th Floor 17th Floor
Charlotte, NC 28288 Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxx Attn: Xxxxxxxx Xxxxx
T: 000 000-0000 T: 000 000-0000
F: 704 715-0095 F: 704 715-0095
---------------------------------------- -------------------------------------- --------------------------------------
2
Schedule 4.01(h)
None
Schedule 4.01 (i)
Owned and formerly owned properties
identified on either the NPL or CERCLIS
or any analogous state list
Owned Properties:
-----------------
Alabama Mobile
California Azusa
Connecticut Stamford
Connecticut Wallingford
Florida Xxxxxxxx
Indiana Michigan City
Illinois Joliet
Louisiana Xxxxxxx
Michigan Kalamazoo
New Jersey Carteret
New Jersey Linden (Warners Plant)
New Jersey Linden Landfill
New Jersey Woodbridge
Ohio Marietta
Ohio Painesville
Ohio Perrysburg
Virginia Piney River (U.S. Titanium)
Washington Longview
West Virginia Willow Island
West Virginia Piney River
Formerly Owned Sites:
---------------------
Alabama Coosa Pines
Alabama Demopolis
Arkansas Xxxxxx
California Saugus
Florida Santa Xxxx*
Xxxxxxx Xxxxxxxx
Georgia Savannah
Maine Sanford
Massachusetts Concord
Michigan Escanaba
Mississippi Monticello*
New Jersey Xxxxxx Steel Drum
New Jersey Keyport (Xxxxxx Xxxxxx)
New Jersey Manchester
New Jersey Xxxx
New Jersey D&J Trucking
New Jersey Penns Neck
North Carolina Charlotte*
Ohio Xxxxxxxx
Pennsylvania Bridgeville
Pennsylvania Latrobe
Pennsylvania New Castle
Pennsylvania RSR
South Carolina Georgetown
Tennessee Chattanooga*
Texas Fort Worth
Utah Spanish Fork
Virginia Damascus
*Cytec Industries Inc. has retained partial ownership of this site.
Schedule 4.01(j)
The following chart sets forth the locations listed on the CERCLA, NPL or
CERCLIS or, to the knowledge of Company, the locations which are proposed for
listing on the CERCLA, NPL, CERCLIS or any analogous state list to which Company
or its subsidiaries have transported or arranged for the transportation of
Hazardous Materials, or which are otherwise required to be listed on Schedule
4.01(j).
SITE NAME CITY STATE
--------- ---- -----
San Xxxxxxx, Area 2 Baldwin Park CA
San Xxxxxxx, Area 4 Xxxxxx Valley CA
Gallup's Quarry Plainfield CT
Solvents Recovery Service of NE (SRSNE) Southington CT
Delaware Sand & Gravel New Castle Co. DE
Ellis Road Jacksonville FL
Peak Oil Tampa FL
Xxxxxx Ave. Drum Site Atlanta GA
Xxxxxxx Chemical Site Pelham GA
Xxxxxxx County Landfill GA
Lake Calumet Cluster Site Chicago IL
US Lead Refining (US Smelter & Lead Refinery) East Chicago IN
Calumet Container Site Xxxxxxx IN
Xxxxx'x Farm Louisville KY
Cannons - Bridgewater (CEC) Bridgewater MA
Silresim Chemical Corp. Lowell MA
Xxxxxxx Street Landfill Sanford ME
A-1 Disposal Otsego MI
Barrels, Inc. Site Lansing MI
Cork Street Landfill (Michigan Disposal Site) Kalamazoo MI
Metamora Lapeer County MI
Rose Township Dump Oakland County MI
Springfield Township Dump Oakland County MI
Great Lakes Container Corp. St. Louis MO
Westlake Landfill Bridgeton MO
Economy Products Omaha NB
Cannons - Xxxxxxxxx (Nashua) Nashua NH
Cannons - Xxxxxxx Garage Londonderry NH
Bayonne Barrel & Drum Newark NJ
Chemical Control Elizabeth NJ
Xxxxx Xxxxxx Landfill Mantua Township NJ
Jonas-Xxxxxx Xxxxxx NJ
SITE NAME CITY STATE
--------- ---- -----
King of Prussia Xxxxxxx Township NJ
Municipal Sanitary Landfill Kearny NJ
Nascolite Millville NJ
SCP Carlstadt Carlstadt NJ
SCP Newark Newark NJ
Silsonix Irvington NJ
Syncon Resin, Inc. South Kearny NJ
White Chemical Newark NJ
Batavia Landfill Batavia NY
Xxxxx Barrel & Drum Xxxxx Township NY
Envirotek I Tonawanda NY
Envirotek II Towawanda NY
Roblin Steel Tonawanda NY
Xxxxxx Xxxxxxxxx Xxx. XX
Xxxx Xxxx Xxxxxxxx Xxxxx Xxxxxx XX
Mobile Tank/Car Cleveland OH
Newport Wellfield Washington Co. OH
Van Dale Junkyard Marietta OH
XX Kem Toledo OH
Boarhead Farms Site Bridgeton Twp. PA
Xxxxxxxxx Steel Ambridge PA
Quality Container Philadelphia PA
Cranston Site Cranston RI
Xxxxxxx Farm Coventry RI
SCRDI Bluff Road Columbia SC
Stoller Chemical Jerico SC
Archem Houston TX
Xxxxxx Service Company Fort Worth TX
Many Diversified Interests, Inc. Houston TX
Sonics Ranger TX
Cobalt Ponds Toole County UT
Xxxx-Xxxxx Chemical, Inc. Nitro WV
West (Virginia) Ordnance Works Morgantown WV
All of the sites listed on Schedule 4.01(i)
are incorporated by reference herein
2
Schedule 5.02(a)
Liens
1. Liens on machinery and equipment of the Borrower located in the State of
Connecticut to secure performance of the Borrower's grant obligations owing
to the State of Connecticut or any political subdivision thereof in an
aggregate principal amount not to exceed $2,500,000.
2. Liens under the Agreement of Ground Lease dated as of March 1, 2000 between
the Borrower and Starwood Xxxxxxx relating to the lease and possible sale
of approximately 7 acres of land at Borrower's Stamford, Connecticut site.
3. Liens at the Borrower's Xxxxxxx, Louisiana facility under (a) ground lease
between Borrower and Methanex Xxxxxxx Inc. dated October 1, 1999, (b)
ground lease between Borrower and CYRO Industries dated as of July 1, 1976
and (c) a management assistance, services and utilities agreement by and
between the Borrower and American Melamine Industries dated as of April 15,
1986, as amended and Liens at the Borrower's Wallingford, CT facility under
a ground lease between Borrower and CYRO Industries dated as of August 1,
1980.
Schedule 5.02(c)
Existing Debt
None
U.S. $725,000,000
FIVE YEAR TERM LOAN AGREEMENT
Dated as of February 15, 2005
Among
CYTEC INDUSTRIES INC.
as Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITICORP NORTH AMERICA, INC.
as Administrative Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
and
ABN AMRO BANK N.V.
as Syndication Agents
CALYON NEW YORK BRANCH
THE BANK OF NOVA SCOTIA
and
SUNTRUST BANK
as Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
As Lead Arranger and Book Manager
2
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
---------------------
SECTION 1.02. Computation of Time Periods 12
---------------------------
SECTION 1.03. Accounting Terms 12
----------------
ARTICLE II
SECTION 2.01. The Advances 12
------------
SECTION 2.02. Making the Advances 12
-------------------
SECTION 2.03. Fees 13
----
SECTION 2.04. Termination or Reduction of the Commitments 13
-------------------------------------------
SECTION 2.05. Repayment of Advances 14
---------------------
SECTION 2.06. Interest on Advances 14
--------------------
SECTION 2.07. Interest Rate Determination 15
---------------------------
SECTION 2.08. Optional Conversion of Advances 16
-------------------------------
SECTION 2.09. Prepayments of Advances 16
-----------------------
SECTION 2.10. Increased Costs 17
---------------
SECTION 2.11. Illegality 18
----------
SECTION 2.12. Payments and Computations 18
-------------------------
SECTION 2.13. Taxes 19
-----
SECTION 2.14. Sharing of Payments, Etc. 20
------------------------
SECTION 2.15. Evidence of Debt 21
----------------
SECTION 2.16. Use of Proceeds 21
---------------
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 21
-----------------------------------------------------
SECTION 3.02. Initial Advance to Each Designated Subsidiary 22
---------------------------------------------
i
SECTION 3.03. Conditions Precedent to Each Borrowing. 23
--------------------------------------
SECTION 3.04. Determinations Under Section 3.01 and 3.02 24
------------------------------------------
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 24
---------------------------------------------
ARTICLE V
SECTION 5.01. Affirmative Covenants 26
---------------------
SECTION 5.02. Negative Covenants 30
------------------
SECTION 5.03. Financial Covenants 32
-------------------
ARTICLE VI
SECTION 6.01. Events of Default 33
-----------------
ARTICLE VII GUARANTY 35
SECTION 7.01. Guaranty 35
--------
SECTION 7.02. Guaranty Absolute 35
-----------------
SECTION 7.03. Waivers and Acknowledgments 36
---------------------------
SECTION 7.04. Subrogation 37
-----------
SECTION 7.05. Continuing Guaranty; Assignments 37
--------------------------------
ARTICLE VIII
SECTION 8.01. Authorization and Action 38
------------------------
SECTION 8.02. Agent's Reliance, Etc. 38
---------------------
SECTION 8.03. CNAI and Affiliates 38
-------------------
SECTION 8.04. Lender Credit Decision 38
----------------------
SECTION 8.05. Indemnification 38
---------------
SECTION 8.06. Successor Agent 39
---------------
SECTION 8.07. Sub-Agent 39
---------
SECTION 8.08. Other Agents. 39
-------------
ii
ARTICLE IX
SECTION 9.01. Amendments, Etc. 39
---------------
SECTION 9.02. Notices, Etc. 40
------------
SECTION 9.03. No Waiver; Remedies 40
-------------------
SECTION 9.04. Costs and Expenses 40
------------------
SECTION 9.05. Right of Set-off 41
----------------
SECTION 9.06. Binding Effect 42
--------------
SECTION 9.07. Assignments and Participations 42
------------------------------
SECTION 9.08. Confidentiality 44
---------------
SECTION 9.09. Designated Subsidiaries 44
-----------------------
SECTION 9.10. Governing Law 44
-------------
SECTION 9.11. Execution in Counterparts 44
-------------------------
SECTION 9.12. Judgment 44
--------
SECTION 9.13. Jurisdiction, Etc. 45
-----------------
SECTION 9.14. Patriot Act 45
-----------
SECTION 9.15. Waiver of Jury Trial 46
--------------------
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(h) - Environmental Compliance
Schedule 4.01(i) - Environmental Disclosure
Schedule 4.01(j) - Locations
Schedule 5.02(a) - Existing Liens
Schedule 5.02(c) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Agreement
Exhibit F - Form of Subsidiary Guaranty
iv
