Exhibit 10.6
U.S. $100,000,000
THREE YEAR CREDIT AGREEMENT
Dated as of April 11, 2002
Among
CYTEC INDUSTRIES INC.
as Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
ABN AMRO BANK N.V.
as Documentation Agent
CITIBANK, N.A.
as Administrative Agent
and
XXXXXXX XXXXX XXXXXX INC.,
As Lead Arranger and Book Manager
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 5
SECTION 1.02. Computation of Time Periods 16
SECTION 1.03. Accounting Terms 16
ARTICLE II
SECTION 2.01. The Revolving Credit Advances 16
SECTION 2.02. Making the Revolving Credit Advances 17
SECTION 2.03. The Competitive Bid Advances 18
SECTION 2.04. Fees 21
SECTION 2.05. Termination or Reduction of the Commitments 21
SECTION 2.06. Repayment of Revolving Credit Advances 21
SECTION 2.07. Interest on Revolving Credit Advances 21
SECTION 2.08. Interest Rate Determination 22
SECTION 2.09. Optional Conversion of Revolving Credit Advances 23
SECTION 2.10. Prepayments of Revolving Credit Advances 24
SECTION 2.11. Increased Costs 24
SECTION 2.12. Illegality 25
SECTION 2.13. Payments and Computations 25
SECTION 2.14. Taxes 26
SECTION 2.15. Sharing of Payments, Etc. 28
SECTION 2.16. Evidence of Debt 28
SECTION 2.17. Use of Proceeds 28
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 28
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. 30
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing 30
SECTION 3.04. Determinations Under Section 3.01 31
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 31
ARTICLE V
SECTION 5.01. Affirmative Covenants 33
SECTION 5.02. Negative Covenants 36
SECTION 5.03. Financial Covenants 38
ARTICLE VI
SECTION 6.01. Events of Default 38
ARTICLE VII
SECTION 7.01. Authorization and Action 40
SECTION 7.02. Agent's Reliance, Etc. 40
SECTION 7.03. Citibank and Affiliates 41
SECTION 7.04. Lender Credit Decision 41
SECTION 7.05. Indemnification 41
SECTION 7.06. Successor Agent 41
SECTION 7.07. Sub-Agent 42
SECTION 7.08. Other Agents. 42
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 42
SECTION 8.02. Notices, Etc. 42
SECTION 8.03. No Waiver; Remedies 42
SECTION 8.04. Costs and Expenses 43
SECTION 8.05. Right of Set-off 44
SECTION 8.06. Binding Effect 44
2
SECTION 8.07. Assignments and Participations 44
SECTION 8.08. Confidentiality 46
SECTION 8.09. Governing Law 46
SECTION 8.10. Execution in Counterparts 46
SECTION 8.11. Judgment 46
SECTION 8.12. Jurisdiction, Etc. 46
SECTION 8.13. Substitution of Currency 47
SECTION 8.14. Waiver of Xxxx Xxxxx 00
0
Xxxxxxxxx
Xxxxxxxx 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-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
4
THREE YEAR CREDIT AGREEMENT
Dated as of April 11, 2002
CYTEC INDUSTRIES INC., a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, XXXXXXX XXXXX BARNEY INC., as lead
arranger and book manager, WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication
agent, ABN AMRO BANK N.V., as documentation agent, and CITIBANK, N.A.
("Citibank"), 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):
"Advance" means a Revolving Credit Advance or a Competitive Bid
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. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 20% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means (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 any Alternative Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Borrower 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 Borrower 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.
"Alternative Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of Japan, Euros or
any other lawful currency other than Dollars that is freely transferable
and convertible into Dollars as the Borrower, with the consent of the
Required Lenders and the Agent, shall designate.
"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 and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Agent as its Applicable Lending
Office with respect to such Competitive Bid Advance.
5
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum and
(b) for Eurocurrency Rate Advances, 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
S&P/Xxxxx'x Eurocurrency Rate Advances
---------------------------------------------------------
Level 1
A- or A3 or above 0.500%
---------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.725%
---------------------------------------------------------
Level 3
BBB or Baa2 0.825%
---------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.925%
---------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 1.125%
---------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 1.325%
---------------------------------------------------------
"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
A- or A3 or above 0.125%
---------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.150%
---------------------------------------------------------
Level 3
BBB or Baa2 0.175%
---------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.200%
---------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 0.250%
---------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.300%
---------------------------------------------------------
"Applicable Utilization Fee" means, as of any date that the aggregate
Advances exceed 33% of the aggregate Commitments, 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 Utilization Fee
---------------------------------------------------------
Level 1
A- or A3 or above 0.125%
---------------------------------------------------------
Xxxxx 0
BBB+ or Baa1 0.125%
---------------------------------------------------------
6
---------------------------------------------------------
Level 3
BBB or Baa2 0.125%
---------------------------------------------------------
Xxxxx 0
XXX- xxx Xxx0 0.250%
---------------------------------------------------------
Xxxxx 0
XXX- xx Xxx0 0.250%
---------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.375%
---------------------------------------------------------
"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
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 a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"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 or LIBO 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).
7
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"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 8.07(d), as such amount may be reduced pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to the Borrower
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.03 and refers to a Fixed Rate
Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
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 Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.08 or 2.09.
"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
8
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.
"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 Borrower 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 and (e) extraordinary or non-recurring losses
included in determining such net income (or net loss), less the sum of (i)
accrued interest and (ii) extraordinary or non-recurring gains 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 Borrower 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 8.07, the Borrower, such approval not
to be unreasonably withheld or delayed; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equivalent" in Dollars of any Alternative Currency on any date means
the equivalent in Dollars of such Alternative Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Alternative Currency 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
9
pursuant to the terms of this Agreement, and the "Equivalent" in any
Alternative Currency of Dollars means the equivalent in such Alternative
Currency of Dollars determined by using the quoted spot rate at which the
Sub-Agent's principal office in London offers to exchange such Alternative
Currency 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 Borrower's controlled group, or under common
control with the Borrower, 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 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 Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower 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 the rate appearing on Page 248 of the 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 (x) in the case of Revolving Credit
Borrowings, to such Reference Bank's Eurocurrency Rate Advance comprising
part of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period (subject,
however, to the provisions of Section 2.08) or (y) in the case of
Competitive Bid Borrowings, to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however, to
the provisions of Section 2.08).
10
"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 Borrower 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 Revolving Credit
Borrowing, (a) in the case of any Revolving Credit Advance denominated in
Dollars or any Alternative Currency other than Euro, the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars or the applicable
Alternative Currency 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 or the applicable Alternative Currency 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 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 Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period or, (b)
in the case of any Revolving Credit Advance denominated in Euros, the
EURIBO Rate. If the 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 Revolving Credit
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or a Alternative Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period for all
Eurocurrency Rate Advances or LIBO 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 or LIBO 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
11
quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i),
which Advances shall be denominated in Dollars.
"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 Borrower
has entered into a Hedge Agreement.
"Information Memorandum" means the information memorandum dated March
11, 2002 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 Borrower 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 Borrower or any Subsidiary shall
have 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 Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or LIBO 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 pursuant to the provisions below and, thereafter, with
respect to Eurocurrency Rate Advances, 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 the 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 the 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) the Borrower may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Revolving Credit Borrowing
or for LIBO Rate Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(c) in the case of any such Revolving Credit Borrowing, the
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 Revolving Credit Borrowing with such Interest Period
(the failure of any Lender to so respond by such time being
12
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
Revolving Credit Borrowing shall be one, two, three or six months, as
specified by the Borrower requesting such Revolving Credit Borrowing
in the applicable Notice of Revolving Credit 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 Borrower in connection with a receivables
securitization program and paid to the Borrower 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 8.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in U.S. 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 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 the amount that would be the
Reference Banks' respective ratable shares of such Borrowing if such
Borrowing were to be a Revolving Credit Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period. If the Telerate Markets Page 3750 (or any successor
page) is unavailable, the LIBO Rate for any Interest Period for each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to and
received by the Agent from the Reference Banks two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" means a Competitive Bid Advance denominated in
Dollars and bearing interest based on the LIBO Rate.
13
"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.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, or properties of
the Borrower 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 Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or (c)
the ability of the Borrower to perform its obligations under this Agreement
or any Note.
"Material Subsidiary" means, at any time, a Subsidiary of the Borrower
having at least 3% of the total Consolidated assets of the Borrower and its
Subsidiaries (determined as of the last day of the most recent fiscal
quarter of the Borrower) or at least 3% of the total Consolidated revenues
of the Borrower and its Subsidiaries for the twelve month period ending on
the last day of the most recent fiscal quarter of the Borrower.
"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 Borrower 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
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower 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.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"Payment Office" means, for any Alternative Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Borrower 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 30 days unless such obligations
are being contested in good faith and by proper proceedings and as to which
appropriate reserves are being 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.
14
"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 Borrower. 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,
the Applicable Percentage and the Applicable Utilization Fee shall be
determined by reference to the available rating; (b) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee will be set in
accordance with Level 5 under the definition of "Applicable Margin",
"Applicable Percentage" or "Applicable Utilization Fee", as the case may
be; (c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be based upon the higher rating, except
that in the event that the lower of such ratings is more than one level
below the higher of such ratings, the Applicable Margin, Applicable
Percentage and Applicable Utilization Fee will be determined based on the
level immediately above the lower of such ratings; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to the
Public Debt Rating announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, ABN AMRO Bank N.V. and Wachovia
Bank, National Association.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least 51% of the
then aggregate unpaid principal amount (based on the Equivalent in Dollars
at such time) of the Revolving Credit Advances owing to Lenders, or, if no
such principal amount is then outstanding, Lenders having at least 51% of
the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Revolving Credit Borrowing Minimum" means, in respect of Revolving
Credit Advances denominated in Dollars, $3,000,000, in respect of Revolving
Credit Advances denominated in Sterling, (pound)3,000,000, in respect of
Revolving Credit Advances denominated in Yen, (Y)300,000,000, in respect of
Revolving Credit Advances denominated in Euros, (E)3,000,000, and for each
other Alternative Currency, such amount as shall be advised by the Agent.
"Revolving Credit Borrowing Multiple" means, in respect of Revolving
Credit Advances denominated in Dollars, $1,000,000 in respect of Revolving
Credit Advances denominated in Sterling, (pound)1,000,000, in respect of
Revolving Credit Advances denominated in Yen, (Y)100,000,000, in respect of
Revolving Credit Advances denominated in Euros, (E)1,000,000, and for each
other Alternative Currency, such amount as shall be advised by the Agent.
15
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.16 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"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
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"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.
"Termination Date" means the earlier of (a) April 11, 2005 and (b) the
date of termination in whole of the Commitments pursuant to Section 2.05 or
6.01.
"Total Consolidated Debt" means all Debt that would, in accordance
with GAAP, appear on the Consolidated balance sheet of the Borrower 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. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally agrees,
on the terms and conditions hereinafter set forth, to make Revolving Credit
Advances to the Borrower from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate amount (based
in respect of any Revolving Credit Advances to be denominated in a Alternative
Currency by reference to the Equivalent thereof in Dollars determined on the
date of delivery of the applicable Notice of Revolving Credit
16
Borrowing) not to exceed at any time outstanding such Lender's Commitment
provided that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount of the
Competitive Bid Advances then outstanding and such deemed use of the aggregate
amount of the Commitments shall be allocated among the Lenders ratably according
to their respective Commitments (such deemed use of the aggregate amount of the
Commitments being a "Competitive Bid Reduction"). Each Revolving Credit
Borrowing shall be in an amount not less than the Revolving Credit Borrowing
Minimum or the Revolving Credit Borrowing Multiple in excess thereof and shall
consist of Revolving Credit Advances of the same Type and in the same currency
made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.10 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit 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
Revolving Credit Borrowing in the case of a Revolving Credit 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
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Alternative
Currency, or (z) 11:00 A.M. (New York City time) on the first Business Day prior
to the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower to
the Agent (and, in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, simultaneously to the Sub-Agent), which shall give
to each Lender prompt notice thereof by telecopier or telex. Each such notice of
a Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be
by telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, initial Interest Period and currency for each such
Revolving Credit Advance.
In the case of a Revolving Borrowing comprised of Eurocurrency Rate
Advances in an Alternative Currency (other than the lawful currency of Great
Britain and Northern Ireland, the lawful currency of Japan and Euros), the
obligation of each Lender to make its Eurocurrency Rate Advance in the requested
Alternative Currency as part of such Revolving Borrowing is subject to the
confirmation by such Lender to the Agent not later than the fourth Business Day
before the requested date of such Revolving Borrowing that such Lender agrees to
make its Eurocurrency Rate Advance in the requested Alternative Currency, which
confirmation shall be notified immediately by the Agent to the Borrower. If any
Lender shall not have so provided to the Agent such confirmation, the Agent
shall promptly notify the Borrower and each Lender that a Lender has not
provided such confirmation, whereupon the Borrower may, by notice to the Agent
not later than the third Business Day before the requested date of such
Revolving Borrowing, withdraw the Notice of Revolving Borrowing relating to such
requested Borrowing. If the Borrower does so withdraw such Notice of Revolving
Borrowing, the Revolving Borrowing requested in such Notice of Revolving
Borrowing shall not occur and the Agent shall promptly so notify each Lender. If
the Borrower does not so withdraw such Notice of Revolving Borrowing, the Agent
shall promptly so notify each Lender and such Notice of Revolving Borrowing
shall be deemed to be a Notice of Revolving Borrowing which requests a Revolving
Borrowing comprised of Eurocurrency Rate Advances in an aggregate amount in
Dollars equivalent, on the date the Agent so notifies each Lender, to the amount
of the originally requested Revolving Borrowing in such an Alternative Currency;
and in such notice by the Agent to each Lender the Agent shall state such
aggregate equivalent amount of such Revolving Borrowing in Dollars and such
Lender's ratable portion of such Borrowing.
Each Lender shall, before 11:00 A.M. (New York City time) on the date of
such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Alternative Currency, 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 Revolving Credit 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
at the Agent's address referred to in Section 8.02 or at the applicable Payment
Office, as the case may be.
17
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit Borrowing is less
than the Revolving Credit Borrowing Minimum or if the obligation of the Lenders
to make Eurocurrency Rate Advances shall then be suspended pursuant to Section
2.08 or 2.12 and (ii) the Eurocurrency Rate Advances may not be outstanding as
part of more than eight separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower 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 Revolving Credit
Borrowing for such Revolving Credit 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
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit 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 Revolving Credit Borrowing that such Lender will not make available
to the Agent such Lender's ratable portion of such Revolving Credit Borrowing,
the Agent may assume that such Lender has made such portion available to the
Agent on the date of such Revolving Credit 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 on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the 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
the Borrower until the date such amount is repaid to the Agent, at (i) in the
case of the Borrower, the higher of (A) the interest rate applicable at the time
to Revolving Credit Advances comprising such Revolving Credit 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 Alternative Currencies. If
such Lender shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Revolving Credit Advance as part of such
Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Revolving Credit Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may make Competitive Bid Borrowings under this Section
2.03 from time to time on any Business Day during the period from the date
hereof until the date occurring 30 days prior to the Termination Date in the
manner set forth below; provided that, following the making of each Competitive
Bid Borrowing, (x) the aggregate amount of the Competitive Bid Advances of all
Lenders then outstanding shall not exceed $50,000,000 and (y) the aggregate
amount of the Advances then outstanding shall not exceed the aggregate amount of
the Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier or telex, a notice
of a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"),
in substantially the form of Exhibit B-2 hereto, specifying therein the
requested (v) date of such proposed Competitive Bid Borrowing, (w)
aggregate amount of such proposed Competitive Bid Borrowing, (x) in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
Interest Period, or in the case of a Competitive Bid Borrowing consisting
of Fixed Rate Advances, maturity date for repayment of each Fixed Rate
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring 7 days after the
date of such
18
Competitive Bid Borrowing or later than the earlier of (I) in the case of
Fixed Rate Advances, 180 days and, in the case of LIBO Rate Advances, one,
two, three, six or nine months, after the date of such Competitive Bid
Borrowing and (II) the Termination Date), (y) interest payment date or
dates relating thereto, and (z) other terms (if any) to be applicable to
such Competitive Bid Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead specify
in the Notice of Competitive Bid Borrowing that the Advances comprising
such Competitive Bid Borrowing shall be LIBO Rate Advances. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the Borrower.
The Agent shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Competitive Bid Advances to the
Borrower as part of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole discretion, by
notifying the Agent (which shall give prompt notice thereof to the
Borrower), (A) before 9:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and (B) before 10:00 A.M. (New
York City time) three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances of the minimum amount and maximum amount
of each Competitive Bid Advance which such Lender would be willing to make
as part of such proposed Competitive Bid Borrowing (which amounts may,
subject to the proviso to the first sentence of this Section 2.03(a),
exceed such Lender's Commitment, if any), the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance; provided that if the Agent in its capacity as a
Lender shall, in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer at least 30 minutes before the time
and on the date on which notice of such election is to be given to the
Agent, by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent before 10:00 A.M. (New York
City time) on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be obligated to,
and shall not, make any Competitive Bid Advance as part of such Competitive
Bid Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and
(B) before 11:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to the
Borrower by the Agent on behalf of such Lender for such Competitive
Bid Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above by
giving the Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of interest offered by
such Lenders. If two or more Lenders
19
have offered the same interest rate, the amount to be borrowed at such
interest rate will be allocated among such Lenders in proportion to
the amount that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in
turn promptly notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such Competitive
Bid Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower, (B)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to
be made by such Lender as part of such Competitive Bid Borrowing, and (C)
each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid Advance as part
of such Competitive Bid Borrowing shall, before 12:00 noon (New York City
time) on the date of such Competitive Bid Borrowing specified in the notice
received from the Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Agent at the Agent's
Account, in same day funds, such Lender's portion of such Competitive Bid
Borrowing. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the Agent will
make such funds available to the Borrower at the Agent's address referred
to in Section 8.02. Promptly after each Competitive Bid Borrowing the Agent
will notify each Lender of the amount of the Competitive Bid Borrowing, the
consequent Competitive Bid Reduction and the dates upon which such
Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or more of
the offers made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, such notice of acceptance shall be irrevocable and binding on the
Borrower. The Borrower 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 the related Notice of Competitive Bid
Borrowing for such Competitive Bid 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 Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing when such Competitive Bid Advance,
as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$3,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower and each
Lender shall be in compliance with the limitations set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section 2.03,
the Borrower may from time to time borrow under this Section 2.03, repay or
prepay pursuant to subsection (d) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Lender
that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
20
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the date of such Competitive Bid Advance to the
date the principal amount of such Competitive Bid Advance is repaid in full, at
the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default
under Section 6.01(a), the Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each Competitive Bid
Advance made to the Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount 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
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing June 30, 2002, and on the
Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own account
such fees as may from time to time be agreed between the Borrower and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three 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 $3,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances
denominated in Dollars then outstanding plus the Equivalent in Dollars
(determined as of the date of the notice of prepayment) of the aggregate
principal amount of the Competitive Bid Advances denominated in Alternative
Currencies then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit 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 Revolving Credit
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 plus (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September
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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 Revolving
Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest Period for such Revolving Credit Advance to
the sum of (x) the Eurocurrency Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in effect from time
to time plus (z) the Applicable Utilization Fee, if any, 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 Borrower to pay interest ("Default
Interest") on (i) the unpaid principal amount of each Revolving Credit 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 Revolving Credit Advance
pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above; provided, however, that following
acceleration of the Advances pursuant to Section 6.01, Default Interest shall
accrue and be payable hereunder whether or not previously required by the Agent.
(c) Additional Interest on Eurocurrency Rate Advances. For so long as any
Lender maintains reserves against Eurocurrency Liabilities, the 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, 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 Revolving Credit 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 which interest is payable on such Advance. Such additional interest shall be
determined by such Lender and notified to the Borrower through the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank agrees
to furnish to the Agent timely information for the purpose of determining each
Eurocurrency Rate and each LIBO 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 Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any 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 Revolving Credit 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 Borrower and the
Lenders, whereupon (A) the Borrower 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
any Alternative Currency, 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
Revolving Credit Advances into, Eurocurrency Rate Advances
22
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the 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 the 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 a Alternative Currency, 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 Revolving Credit Borrowing Minimum,
such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default
under Section 6.01(a), (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 any
Alternative Currency, 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 Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurocurrency Rate Advances
or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, 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 and (B) if such Eurocurrency Rate Advance
is denominated in any Alternative Currency, be prepaid by the 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 LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.12,
Convert all Revolving Credit Advances denominated in Dollars of one Type
comprising the same Borrowing into Revolving Credit 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 Revolving Credit Advances shall result in more separate
Revolving Credit 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 Revolving Credit
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.
23
SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional. The
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 the Borrower shall, prepay
the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit 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 Revolving Credit Borrowing
Minimum or a Revolving Credit Borrowing Multiple in excess thereof and (y) in
the event of any such prepayment of a Eurocurrency Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
(b) Mandatory. (i) If, on any date, the Agent notifies the Borrower 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 (determined on the third Business Day prior to such interest payment
date) of the aggregate principal amount of all Advances denominated in
Alternative Currencies then outstanding exceeds 105% of the aggregate
Commitments of the Lenders on such date, the Borrower 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 Borrower 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 or the
outstanding LIBO Rate Advances and/or the maturity date of the outstanding Fixed
Rate Advances, as the case may be, 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 2.10(b) to the Borrower and the Lenders, and shall
provide prompt notice to the Borrower of any such notice of required prepayment
received by it from any Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be made
together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurocurrency
Rate Advance or a LIBO Rate Advance on a date other than the last day of an
Interest Period or at its maturity, any additional amounts which the Borrower
shall be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 8.04(b). The Agent shall give prompt notice of any prepayment required
under this Section 2.10(b) to the Borrower and the Lenders.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority 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 or LIBO
Rate Advances (excluding for purposes of this Section 2.11 any such increased
costs resulting from (i) Taxes or Other Taxes (as to which Section 2.14 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 Borrower 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 Borrower 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 Borrower shall pay to the Agent for the account of
such Lender,
24
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurocurrency Lending Office to perform its obligations
hereunder to make Eurocurrency Rate Advances in Dollars or any Alternative
Currency or LIBO Rate Advances in Dollars or to fund or maintain Eurocurrency
Rate Advances in Dollars or any Alternative Currency or LIBO Rate Advances in
Dollars hereunder, (a) each Eurocurrency Rate Advance or LIBO Rate Advance, as
the case may be, will automatically, upon such demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, (i) if such Eurocurrency Rate Advance or LIBO
Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance or
an Advance that bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (ii) if such Eurocurrency Rate Advance is denominated in
any Alternative Currency, be exchanged into an Equivalent amount of Dollars and
be Converted into a Base Rate Advance and (b) the obligation of the Lenders to
make Eurocurrency Rate Advances or LIBO Rate Advances or to Convert Revolving
Credit Advances into Eurocurrency Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make each
payment hereunder (except with respect to principal of, interest on, and other
amounts relating to, Advances denominated in a Alternative Currency),
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. The Borrower shall make each
payment hereunder with respect to principal of, interest on, and other amounts
relating to, Advances denominated in a Alternative Currency, irrespective of any
right of counterclaim or set-off, not later than 11:00 A.M. (at the Payment
Office for such Alternative Currency) on the day when due in such Alternative
Currency 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
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 8.04(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 8.07(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) The 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 the
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 facility fees shall be made by the Agent on the basis of a year of
360 days and computations in respect of Competitive Bid Advances shall be made
by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Alternative Currencies where market practice differs, in
accordance with market practice), 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 facility fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
25
(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 facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the 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 the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (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 Alternative
Currencies.
(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
2.13, the Agent shall be entitled to convert or exchange such funds into Dollars
or into a Alternative Currency or from Dollars to a Alternative Currency or from
a Alternative Currency 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 2.13; provided that the 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 the Borrower or such Lender as a result of any conversion or
exchange of currencies affected pursuant to this Section 2.13(f) or as a result
of the failure of the Agent to effect any such conversion or exchange; and
provided further that the 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 2.13(f).
SECTION 2.14. Taxes. (a) Any and all payments by the 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
2.13 or the applicable provisions of such other documents, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or 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 the 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 2.14) such Lender or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower 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").
26
(c) The 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 2.14) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, 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 the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to 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 Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower 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 Borrower 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
Borrower with the appropriate form, certificate or other document described in
Section 2.14(e) (other than if such failure is due to a change in law, or in the
interpretation or application thereof, occurring subsequent to the date on which
a form, certificate or other document originally was required to be provided, or
if such form, certificate or other document otherwise is not required under
subsection (e) above), such Lender shall not be entitled to indemnification
under Section 2.14(a) or (c) with respect to Taxes imposed by the United States
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 Borrower shall take such steps as the Lender
shall reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
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.
27
SECTION 2.15. 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 Revolving Credit Advances owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Credit Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit 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. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving Credit
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 Revolving Credit Advances. The Borrower agrees that upon
notice by any Lender to the Borrower (with a copy of such notice to the Agent)
to the effect that a Revolving Credit Note is required or appropriate in order
for such Lender to evidence (whether for purposes of pledge, enforcement or
otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a
Revolving Credit 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 8.07(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 the
Borrower to each Lender hereunder and (iv) the amount of any sum received by the
Agent from the 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 the 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 the Borrower under this
Agreement.]
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as
of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31,
2001.
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(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
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 Note 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 the
Information Memorandum was or has become misleading, incorrect or incomplete in
any material respect; without limiting the generality of the foregoing, the
Lenders shall have been given such access to the management, records, books of
account, contracts and properties of the Borrower and its Subsidiaries as they
shall have requested.
(d) 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, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in writing
as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the Agent
and the Lenders (including the accrued fees and expenses of counsel to the
Agent).
(g) 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 Borrower, 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.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for the Revolving Credit Notes) in sufficient copies for each
Lender:
(i) The Revolving Credit Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of
the Borrower approving this Agreement and the Notes, and of all documents
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) An environmental assessment update report dated December 31, 2001
in form, scope and substance reasonably satisfactory to the Lenders
prepared by the Borrower as to any material environmental hazards or
liabilities to which the Borrower or any of its Subsidiaries may be
subject, and the Lenders shall be reasonably satisfied with the amount and
nature of any such hazards or liabilities and with the Borrower's plans
with respect thereto.
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(v) A favorable opinion of Xxx Xxxxx, General Counsel for the
Borrower, substantially in the form of Exhibit D hereto and as to such
other matters as any Lender through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the Agent,
in form and substance satisfactory to the Agent.
(i) The Borrower shall have terminated the commitments, and paid in full
all Debt, interest, fees and other amounts outstanding, under the Credit
Agreement dated as July 29, 1997, as amended, among the Borrower, the lenders
parties thereto and Citibank, as agent, and each of the Lenders that is a party
to such credit facility hereby waives, upon execution of this Agreement, the
three Business Days' notice required by Section 2.04 of said Credit Agreement
relating to the termination of commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and the acceptance
by the Borrower of the proceeds of such Revolving Credit Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) thereof) are correct on and as of such date, before and after giving
effect to such Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The
obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as
part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Competitive
Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such
Competitive Bid Borrowing or from the application of the proceeds therefrom,
that constitutes a Default, and
30
(c) no event has occurred and no circumstance exists as a result of which
the information concerning the Borrower that has been provided to the Agent and
each Lender by the Borrower in connection herewith would include an untrue
statement of a material fact or omit to state any material fact or any fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading, except to the extent
it was corrected by information subsequently provided to the Agent and the
Lenders.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, 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 Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes to be delivered by it, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(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 the
Borrower of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it
when delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered hereunder will
be, the legal, valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as
at December 31, 2001, and the related Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of KPMG LLP, independent public accountants, copies of
which have been furnished to each Lender, fairly present the Consolidated
financial condition of the Borrower and its Subsidiaries as at such date and the
Consolidated results of the operations of the Borrower and its Subsidiaries for
the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2001, there has
been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower 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 Note or the consummation of the
transactions contemplated hereby.
31
(g) Following application of the proceeds of each Advance, not more than 25
percent of the value of the assets (either of the Borrower only or of the
Borrower 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 Borrower 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 Borrower 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
Borrower and its Subsidiaries, the Borrower 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 Borrower, no circumstances exist that would be reasonably expected to (i)
form the basis of an Environmental Action against the Borrower 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 Borrower or any of its Subsidiaries is listed or, to the
knowledge of the Borrower, 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 Borrower 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 Borrower, 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 Borrower 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.
(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 Lenders 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 Borrower 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 Borrower nor any of its ERISA Affiliates (other than
one considered an ERISA Affiliate only
32
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 Borrower'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 the Borrower 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 Borrower, 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.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA, except to the extent that any such non-compliance, in the
aggregate, would not have a material negative impact on the Borrower and its
Subsidiaries, taken as a whole.
(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 negative impact on the Borrower and
its Subsidiaries, taken as a whole; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) 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 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 Borrower 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 Borrower 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
33
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
Borrower or such Subsidiary operates; provided, however, that the Borrower 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 Borrower 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 Borrower and its Subsidiaries may consummate any
merger or consolidation permitted under Section 5.02(b) and provided further
that neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if the Board of Directors of the Borrower or
such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary, as
the case may be, and that the loss thereof is not materially disadvantageous to
the Borrower 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 Borrower and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their independent
certified public accountants.
(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 request of
the Required Lenders through the Agent, provide to the Lenders within 90 days
after such request, at the expense of the Borrower, an environmental site
assessment report for the properties described in such request, prepared by an
environmental consulting firm acceptable to the Administrative Agent, indicating
the presence or absence of Hazardous Materials and the estimated cost of any
compliance, removal or remedial action in connection with any 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 Borrower
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
material in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, provided that neither the Borrower nor any of
its Subsidiaries shall be required to preserve any properties if the Board of
Directors of the Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not materially disadvantageous to the Borrower 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
Borrower 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
Borrower 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 Lenders:
34
(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 Borrower,
the Consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such quarter and Consolidated statements of income and cash
flows of the Borrower 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 Borrower as having been prepared in accordance
with generally accepted accounting principles and certificates of the chief
financial officer of the Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03, provided that in the event of
any change in generally accepted accounting principles used in the
preparation of such financial statements, the Borrower 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 Borrower, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries, containing the
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such fiscal year and Consolidated statements of income and cash
flows of the Borrower 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, provided that in the event of any change in generally accepted
accounting principles used in the preparation of such financial statements,
the Borrower 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 Borrower setting forth
details of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to its securityholders generally, and
copies of all reports and registration statements that the Borrower 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 Borrower or any of its Subsidiaries of the type described in Section
4.01(f);
(vi) promptly after an officer of the Borrower knows or should know of
the occurrence thereof, notice of any condition or occurrence on any
property of the Borrower or any of its Subsidiaries that results in a
material noncompliance by or material liability with respect to the
Borrower 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 Borrower 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 Borrower 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
35
financial officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower 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 Borrower 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 Borrower 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 ERISA, of any such
Multiemployer Plan or (z) the amount of liability incurred, or that may be
incurred, by the Borrower or any of its ERISA Affiliates in connection with
any event described in clause (x) or (y); and
(xi) such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower 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 Borrower or any Subsidiary 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 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 properties not theretofore subject to the Lien being
extended, renewed or replaced, provided further that the aggregate
principal amount of the indebtedness secured by the Liens referred to in
this clause (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 Borrower or any Subsidiary of the
Borrower or becomes a Subsidiary of the Borrower; provided that such Liens
were not created in contemplation of such merger,
36
consolidation or acquisition and do not extend to any assets other than
those of the Person so merged into or consolidated with the Borrower or
such Subsidiary or acquired by the Borrower or such Subsidiary,
(v) other Liens (A) securing Debt in an aggregate principal amount not
to exceed the amount specified therefor in Section 5.02(c)(iii) at any time
outstanding, or (B) that arise in connection with receivables
securitization programs, in an aggregate principal amount not to exceed
$125,000,000 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 Borrower 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 Borrower 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 permitted under Section 5.02(c)(i); 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 of its Subsidiaries to do so,
except that any Subsidiary of the Borrower may merge or consolidate with or
into, or dispose of assets to, any other Subsidiary of the Borrower, and except
that any Subsidiary of the Borrower may merge into or dispose of assets to the
Borrower and the Borrower may merge with any other Person so long as the
Borrower is the surviving corporation, provided, in each case, that no Default
shall have occurred and be continuing at the time of such proposed transaction
or would result therefrom.
(c) Subsidiary Debt. Permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary of the
Borrower,
(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)(iv)
aggregating for all of the Borrower's Subsidiaries not more than
$25,000,000 at any one time outstanding,
(iv) unsecured Debt aggregating not more than $150,000,000 at any one
time outstanding incurred by a special purpose financing Subsidiary of the
Borrower having not more than $5,000,000 aggregate value in assets,
(v) unsecured Debt aggregating not more than $25,000,000 at any time
outstanding for all of the Borrower's Subsidiaries not otherwise permitted
by this subsection (c),
37
(vi) Invested Amounts,
(vii) Debt ("Acquired Debt") of any Person that becomes a Subsidiary
of the Borrower after the date hereof that is existing at the time such
Person becomes a Subsidiary of the Borrower (other than Debt incurred in
contemplation of such Person becoming a Subsidiary of the Borrower), 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) indorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business.
(d) Accounting Changes. Make or permit, or permit any of its Subsidiaries
to make or permit, any change in accounting policies or reporting practices,
except as required or permitted by generally accepted accounting principles.
(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
Borrower 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 Borrower will:
(a) Interest Coverage Ratio. Maintain a ratio of Consolidated EBITDA of the
Borrower and its Subsidiaries to Interest Expense for the four quarters most
recently ended, in each case, by the Borrower and its Subsidiaries of not less
than 4.50:1.00.
(b) Debt to EBITDA Ratio. Maintain a ratio of Total Consolidated Debt to
Consolidated EBITDA of the Borrower and its Subsidiaries for the four quarters
most recently ended of not greater than 3.00:1.00.
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 Borrower shall fail to pay any principal of any Advance when the
same becomes due and payable; or the 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 the Borrower herein or by the
Borrower (or any of its officers) in connection with this Agreement shall prove
to have been incorrect in any material respect when made; or
(c) (i) The Borrower 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)
the Borrower shall fail to perform or observe
38
any other term, covenant or agreement contained in this Agreement 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 Borrower by the Agent
or any Lender; or
(d) The Borrower 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 $20,000,000 or any Hedge Agreement the Agreement Value of which is
at least $20,000,000 in the aggregate (but excluding Debt outstanding hereunder)
of the Borrower 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 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 Borrower or any of its Material Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the Borrower
or any of its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 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 Borrower or any of its Material Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of $20,000,000
in the aggregate shall be rendered against the Borrower or any of its Material
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
Borrower or any of its Subsidiaries that could 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 Borrower (or other securities
convertible into such Voting Stock) representing 20% or more of the combined
voting power of all Voting Stock of the Borrower; or (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
Borrower shall cease for any reason to constitute a majority of the board of
directors of the Borrower (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 Borrower or
(y) nominated for election by a majority of the remaining members of the board
of directors of the
39
Borrower and thereafter elected as directors by the shareholders of the
Borrower); or (iii) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) Any ERISA Event shall have occurred in an amount exceeding $20,000,000;
or
(j) The Borrower 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 Borrower could 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 Borrower and its ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification), exceeds
$20,000,000 or requires payments exceeding $4,000,000 per annum; or
(k) The Borrower 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 Borrower 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 Borrower 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 $4,000,000;
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 Borrower, 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 Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
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 the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. 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 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 this
Agreement (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 Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. 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 this Agreement,
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
40
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
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 this Agreement; (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 this Agreement on the part of the
Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment, the
Advances made by it and the Note issued to it, Citibank shall have the same
rights and powers under this Agreement 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 Citibank in its individual
capacity. Citibank 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 Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank 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 Borrower or its Subsidiaries to the extent such information was
obtained or received in any capacity other than as Agent.
SECTION 7.04. 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 7.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Revolving Credit Advances then owed to each of them (or
if no Revolving Credit 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 this Agreement or any action taken or omitted by the Agent under
this Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower 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,
41
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 this Agreement. 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 7.07. 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 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 7.08. Other Agents. Each Lender hereby acknowledges that neither
the documentation agent nor any other Lender designated as any "Agent" on the
signature pages hereof has any liability hereunder other than in its capacity as
a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Revolving Credit Notes, nor consent to any departure by
the Borrower 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 the
Commitments of the Lenders, (c) reduce the principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit 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 Revolving Credit Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; 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 any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, 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 Borrower 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 Borrower and the Agent. All
such notices and communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by telex answerback, 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 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.
SECTION 8.03. 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
42
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 8.04. Costs and Expenses. (a) The Borrower 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 Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence, 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 this
Agreement. The Borrower 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 Notes 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 8.04(a).
(b) The Borrower 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 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 Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries (but excluding
any such claim, damage, loss, liability or expense (i) to the extent found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct or
(ii) arising from a successful claim by the Borrower against such Indemnified
Party). In the case of an investigation, litigation or other proceeding to which
the indemnity in this Section 8.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, 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 Borrower 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, 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 or LIBO Rate Advance is made by the 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 2.08, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.08, 2.10 or 2.12, the 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 the Alternative
Currency purchased by any Lender in the case of a Conversion or exchange of
Advances in the case of Section 2.08 or 2.12 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
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
43
SECTION 8.05. 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 Borrower against any and
all of the obligations of the Borrower now or 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 unmatured. Each Lender agrees promptly to notify the 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 8.06. Binding Effect. This Agreement shall become effective (other
than Sections 2.01 and 2.03, 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 Borrower 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 Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and, if
demanded by the Borrower (following a demand by such Lender pursuant to Section
2.11 or 2.14) 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 Revolving Credit Advances owing to it and the
Revolving Credit 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 (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive
Bid Notes), (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 $3,000,000 or an
integral multiple of $1,000,000 in excess thereof unless the Borrower 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 Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower 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 Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower 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 Revolving Credit 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 Borrower, such recordation fee shall be payable by the Borrower
except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Borrower to an Eligible Assignee that is
an existing Lender, and (vii) any Lender may, without the approval of the
Borrower 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 2.11,
44
2.14 and 8.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit 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 Borrower.
(d) The Agent shall maintain at its address referred to in Section 8.02 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 Borrower, 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 Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower 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 Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower 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 8.07, disclose to
the assignee or participant or proposed assignee
45
or participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the 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 the Borrower received by it from such Lender.
(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 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, 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 8.07(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 the Borrower received by it from such Lender, (d) as requested 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.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. 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 a Alternative Currency 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 such Alternative Currency 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 Borrower in respect of any sum due from it in any
currency (the "Primary Currency") to any Lender or the Agent hereunder shall,
notwithstanding any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by such Lender or the Agent
(as the case may be), of any sum adjudged to be so due in such other currency,
such Lender or the Agent (as the case may be) may in accordance with normal
banking procedures purchase the applicable Primary Currency with such other
currency; if the amount of the applicable Primary Currency so purchased is less
than such sum due to such Lender or the Agent (as the case may be) in the
applicable Primary Currency, the 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 Borrower such excess.
SECTION 8.12. 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
00
xxxxxxx xxxxx xx xxx Xxxxxx Xxxxxx of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The Borrower hereby agrees
that service of process in any such action or proceeding brought in the any such
New York State court or in such federal court may be made upon CT Corporation
System at its offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process
Agent") and the Borrower hereby irrevocably appoints the Process Agent its
authorized agent to accept such service of process, and agrees that the failure
of the Process Agent to give any notice of any such service shall not impair or
affect the validity of such service or of any judgment rendered in any action or
proceeding based thereon. The Borrower hereby further irrevocably consents to
the service of process in any action or proceeding in such courts by the mailing
thereof by any parties hereto by registered or certified mail, postage prepaid,
to the Borrower at its address specified pursuant to Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Substitution of Currency. If a change in any Alternative
Currency occurs pursuant to any applicable law, rule or regulation of any
governmental, monetary or multi-national authority, this Agreement (including,
without limitation, the definitions of Eurocurrency Rate and LIBO Rate) will be
amended to the extent determined by the Agent (acting reasonably and in
consultation with the Borrower) to be necessary to reflect the change in
currency and to put the Lenders and the Borrower in the same position, so far as
possible, that they would have been in if no change in such Alternative Currency
had occurred.
47
SECTION 8.14. Waiver of Jury Trial. Each of the 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 the Notes 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/ X. X. Xxxxxx
--------------------------
Title: Executive Vice President &
Chief Financial Officer
CITIBANK, N.A.,
as Agent
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Managing Director
Initial Lenders
---------------
Commitment
---------- Arranger
--------
$17,000,000 CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Managing Director
Agents
------
$16,000,000 ABN AMRO BANK N.V.
By /s/ Xxxxx X. Xxxxxxxx
--------------------------
Title: Group Vice President
By /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Title: Vice President
$16,000,000 WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
--------------------------
Title: Director
48
Lenders
-------
$13,000,000 MELLON BANK, N.A.
By /s/ Xxxxxxx Xxxxxxxx
--------------------------
Title: Vice President
$13,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Title: Vice President
$12,500,000 PNC BANK, NATIONAL ASSOCIATION
By /s/Xxxxxxx Xxxxxxxxx
--------------------------
Title: Assistant Vice President
$7,500,000 THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxxxxx
--------------------------
Title: Vice President
$5,000,000 THE BANK OF NOVA SCOTIA
By /s/Xxxx X. Xxxxxx
--------------------------
Title: Managing Director
$100,000,000 Total of the Commitments
Schedules and Exhibits have not been included with this filing. The Company
agrees to furnish supplementally to the Commission any and all of the Schedules
and Exhibits to this agreement upon request by the Commission.
49
