CONFORMED COPY
$400,000,000
364-DAY AMENDED AND RESTATED CREDIT AGREEMENT
among
DOW XXXXX & COMPANY, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 27, 2000
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 11
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS 12
2.1 Revolving Credit Commitments 12
2.2 The Competitive Loans 13
2.3 Type of Revolving Credit Loans 16
2.4 Fees 16
2.5 Termination or Reduction of Loan Commitments 17
2.6 Repayment of Loans 17
2.7 Optional Prepayments 17
2.8 Interest Rate and Payment Dates 18
2.9 Computation of Interest and Fees 18
2.10 Inability to Determine Interest Rate 19
2.11 Pro Rata Borrowings and Payments 19
2.12 Taxes 20
2.13 Illegality 23
2.14 Requirements of Law 24
2.15 Indemnity 25
2.16 Extension of Termination Date 25
SECTION 3. REPRESENTATIONS AND WARRANTIES 26
3.1 Financial Condition 26
3.2 No Change 26
3.3 Corporate Existence; Compliance with Law 26
3.4 Corporate Power; Authorization; Enforceable Obligations 27
3.5 No Legal Bar 27
3.6 No Material Litigation 27
3.7 No Default 27
3.8 Ownership of Property; Liens 27
3.9 No Burdensome Restrictions 27
3.10 Taxes 28
3.11 Federal Regulations 28
3.12 ERISA 28
3.13 Investment Company Act 28
3.14 Subsidiaries 28
3.15 Purpose of Loans 28
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SECTION 4. CONDITIONS PRECEDENT 29
4.1 Conditions to Effectiveness 29
(a)Legal Opinion 29
(b)Officer's Certificate 29
(c)Secretary's Certificate 29
(d)Compliance 29
(e)Existing Credit Agreement 29
(f)Fees 29
(g)Additional Matters 29
4.2 Conditions to All Loans 29
(a)Representations and Warranties 30
(b)No Default or Event of Default 30
(c)Additional Conditions to Competitive Loans 30
SECTION 5. AFFIRMATIVE COVENANTS 30
5.1 Financial Statements 30
5.2 Certificates; Other Information 31
5.3 Payment of Obligations 31
5.4 Conduct of Business and Maintenance of Existence 31
5.5 Maintenance of Property; Insurance 32
5.6 Inspection of Property; Books and Records; Discussions 32
5.7 Notices 32
SECTION 6. NEGATIVE COVENANTS 33
6.1 Limitation on Liens 33
6.2 Limitation on Mergers and Sales of Assets 34
6.3 Maintenance of Ratio of Consolidated Total Indebtedness
to Consolidated Total Capitalization 34
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow 35
SECTION 7. EVENTS OF DEFAULT 35
SECTION 8. THE ADMINISTRATIVE AGENT 37
8.1 Appointment 37
8.2 Delegation of Duties 37
8.3 Exculpatory Provisions 38
8.4 Reliance by Administrative Agent 38
8.5 Notice of Default 38
8.6 Non-Reliance on Administrative Agent, Other Lenders 39
8.7 Indemnification 39
8.8 Administrative Agent in Its Individual Capacity 39
8.9 Successor Administrative Agent 40
8.10 Documentation Agent and Syndication Agent 40
- ii -
SECTION 9. MISCELLANEOUS 40
9.1 Amendments and Waivers 40
9.2 Notices 41
9.3 No Waiver; Cumulative Remedies 41
9.4 Survival of Representations and Warranties 41
9.5 Payment of Expenses and Taxes 41
9.6 Successors and Assigns; Participations; Purchasing Lenders 42
9.7 Adjustments; Set-off 46
9.8 Counterparts 46
9.9 Severability 47
9.10 Integration 47
9.11 Governing Law 47
9.12 Submission To Jurisdiction; Waivers 47
Schedules
1.1 Loan Commitments
3.14 Subsidiaries of the Company
6.1 Existing Liens
9.2 Names and Addresses of Lenders
Exhibits
A Form of Borrowing Notice for Revolving Credit Loans
B Form of Competitive Loan Request
C Form of Competitive Loan Offer
D Form of Competitive Loan Confirmation
E Form of Exemption Certificate
F Form of Opinion of Xxxxxxxx X. Xxxxx, Vice President/Law, Deputy
General Counsel and Assistant Secretary
G Form of Officer's Certificate
H Form of Certificate of the Assistant Secretary of the Company
I Form of Competitive Loan Assignment
J Form of Assignment and Acceptance
- iii -
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 27, 2000,
among DOW XXXXX & COMPANY, INC., a Delaware corporation (the "Company"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), WESTDEUTSCHE LANDESBANK
GIROZENTRALE, as documentation agent (in such capacity, the "Documentation
Agent"), FLEET NATIONAL BANK, as syndication agent (in such capacity, the
"Syndication Agent"), and THE CHASE MANHATTAN BANK, as administrative agent
(in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and certain of the
Lenders are parties to the Amended and Restated Credit Agreement dated as of
June 29, 1999, as amended (the "Existing Credit Agreement"), and the parties
hereto wish to amend and restate the Existing Credit Agreement;
NOW, THEREFORE, the Existing Credit Agreement shall be amended and
restated to read in its entirety as follows:
SECTION DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
"Absolute Rate Competitive Loan Request": any Competitive Loan
Request requesting the Competitive Loan Lenders to offer to make Competitive
Loans at an absolute rate (as opposed to a rate composed of the Applicable
Index Rate plus (or minus) a margin).
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with such Person. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (i) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
"Aggregate Loans": at a particular time, the sum of the then
outstanding principal amount of Revolving Credit Loans and Competitive Loans.
"Agreement": this Revolving Credit Agreement, as amended,
supplemented or modified from time to time.
"Alternate Base Rate": at any particular date, the highest of (a)
the Prime Rate, (b) 2 of 1% above the rate set forth for such date opposite
the caption "Federal Funds (Effective)" in the weekly statistical release
designated as "H.15 (519)," or any successor publication, published by the
Board of Governors of the Federal Reserve System and (c) the Base
2
C/D Rate in effect on such date plus 1%. "Base CD Rate" shall mean a rate
per annum equal to the following:
Three-Month Secondary CD Rate + Assessment Rate
1.00 - Reserve Percentage
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board of Governors of the Federal Reserve System through
the public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board of Governors of
the Federal Reserve System, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the
average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 a.m., New York City time, on such day (or, if such day
shall not be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the rate set forth in clause (b) above or both for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) or (c), or both,
of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the rate set forth in clause (b) shall be effective on
the effective day of such change in the such rate.
"Alternate Base Rate Loans": Revolving Credit Loans at such time as
they are made and/or being maintained at a rate of interest based upon the
Alternate Base Rate.
"Annualized Consolidated Cash Flow": as at the last day of any
fiscal quarter of the Company the Consolidated Cash Flow for the period of
four consecutive fiscal quarters ending on such day.
"Annualized Consolidated Interest Expense": as at the last day of
any fiscal quarter of the Company the Consolidated Interest Expense for the
period of four consecutive fiscal quarters ending on such day.
"Applicable Facility Fee Percentage": on any date, a rate per annum
equal to 0.06%.
"Applicable Index Rate": in respect of any Competitive Loan
requested pursuant to an Index Rate Competitive Loan Request, the Eurodollar
Rate applicable to the Interest Period for such Competitive Loan.
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"Applicable Margin": on any date with respect to the Loans
comprising any Eurodollar Loans, a rate per annum equal to 0.19%.
"Assessment Rate": for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund maintained
by the Federal Deposit Insurance Corporation (the "FDIC") classified as well-
capitalized and within supervisory subgroup "B" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. ` 327.4 (or
any successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution in
the United States.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit J.
"Available Loan Commitment": as to any Lender, at a particular time,
an amount equal to such Lender's Commitment Percentage multiplied by the
difference between (a) the amount of the Loan Commitments at such time and
(b) the Aggregate Loans at such time; collectively, as to all the Lenders,
the "Available Loan Commitments."
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowing Date": in respect of any Revolving Credit Loan, the date
on which such Revolving Credit Loan is made.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Closing Date": the date on which the conditions in Section 4 are
satisfied in full, which shall be a Business Day which is on or before the
date of the initial Loans.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment Percentage": as to any Lender, the percentage of the
aggregate Loan Commitments constituted by such Lender's Loan Commitment, set
forth opposite such Lender's name on Schedule 1.1 hereto.
"Commitment Period": the period from and including the Closing Date
to but not including the Maturity Date or such earlier date as the Loan
Commitments shall terminate as provided herein.
4
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or (c) of the Code.
"Competitive Loan": each Competitive Loan made pursuant to
subsection 2.2; the aggregate amount advanced by a Competitive Loan Lender
pursuant to subsection 2.2 on each Competitive Loan Date shall constitute one
or more Competitive Loans, as specified by such Competitive Loan Lender
pursuant to subsection 2.2(b)(vi).
"Competitive Loan Assignees": as defined in subsection 9.6(c).
"Competitive Loan Assignment": a Competitive Loan Assignment,
substantially in the form of Exhibit I.
"Competitive Loan Confirmation": each confirmation by the Company of
its acceptance of Competitive Loan Offers, which Competitive Loan
Confirmation shall be substantially in the form of Exhibit D and shall be
delivered to the Administrative Agent in writing, by telex or by facsimile
transmission.
"Competitive Loan Date": each date on which a Competitive Loan is
made pursuant to subsection 2.2.
"Competitive Loan Lenders": Lenders from time to time offering
Competitive Loans.
"Competitive Loan Offer": each offer by a Competitive Loan Lender to
make Competitive Loans pursuant to a Competitive Loan Request, which
Competitive Loan Offer shall contain the information specified in Exhibit C
and shall be delivered to the Administrative Agent by telephone, immediately
confirmed by telex or facsimile transmission.
"Competitive Loan Request": each request by the Company for
Competitive Loan Lenders to submit bids to make Competitive Loans, which
shall contain the information in respect of such requested Competitive Loans
specified in Exhibit B and shall be delivered to the Administrative Agent in
writing, by telex or facsimile transmission, or by telephone, immediately
confirmed by telex or facsimile transmission.
"Consolidated Cash Flow": for any period, Consolidated Net Income of
the Company and its Subsidiaries for such period plus the aggregate amounts
deducted in determining such Consolidated Net Income in respect of (i)
Consolidated Interest Expense, (ii) amortization expenses, (iii) depreciation
expenses and (iv) income taxes, each of clauses (i), (ii), (iii) and (iv)
determined in accordance with GAAP, but after deducting in the calculation
thereof, income representing equity in the earnings of Affiliates not
received in cash or, as the case may be, after restoring thereto deductions
representing equity in the losses of Affiliates for which neither the Company
nor any of its Subsidiaries is liable.
5
"Consolidated Interest Expense": for any period, interest expense of
the Company and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income (or deficit) of the Company and its Subsidiaries for such period
(taken as a cumulative whole), determined in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under shareholders' equity on a consolidated balance sheet
of the Company and its Subsidiaries at such date, determined in accordance
with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum
of Consolidated Net Worth and Consolidated Total Indebtedness.
"Consolidated Total Indebtedness": at a particular date, all items
which would, in conformity with GAAP, be classified as Indebtedness on a
consolidated balance sheet of the Company and its Subsidiaries as at such
date, but in any event including without any duplication (a) indebtedness
arising under acceptance facilities and the face amount of all letters of
credit issued for the account of the Company or any Subsidiary and all drafts
drawn thereunder, (b) all Indebtedness secured by any Lien on any property
owned by the Company or any Subsidiary even though the Company or such
Subsidiary has not assumed or otherwise become liable for the payment thereof
and (c) all Guarantee Obligations of the Company and its Subsidiaries in
respect of Indebtedness of other Persons.
"Continuing Directors": the directors of the Company on the Closing
Date and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Company is
recommended by at least a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its property is
bound.
"Decision Date": as defined in subsection 2.16(b).
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
6
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as AEurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate screen
(or otherwise on such screen), the AEurodollar Base Rate" shall be determined
by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which
the Administrative Agent is offered Dollar deposits at or about 11:00 A.M.,
New York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, event or act has been satisfied.
"Existing Credit Agreement": as defined in the recitals hereto.
"Facility Fee": as defined in subsection 2.4; collectively, the
"Facility Fees."
"Financing Lease": (a) any lease of property, real or personal, the
then present value of the minimum rental commitment under which is required
to be capitalized on a consolidated balance sheet of the Company and its
Subsidiaries in accordance with GAAP, and (b) any other such lease to the
extent that the obligations thereunder are capitalized on a balance sheet of
the lessee.
7
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time except that for purposes of
subsections 6.3 and 6.4, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used in the
preparation of the most recent audited financial statements delivered
pursuant to subsection 3.1.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
Company in good faith.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) indebtedness for borrowed money (including,
without limitation, any indebtedness evidenced by any note, bond, debenture
or other instrument) or for the deferred purchase price of property or
services in respect of which such Person is liable, as obligor, other than
accounts payable for the deferred purchase price of property or services
incurred in the ordinary course of business and which are not in excess of 90
days past the invoice or billing date, or if in excess of 90 days past the
invoice or billing date are being contested in good faith by appropriate
actions or proceedings, (b) obligations of such Person under Financing Leases
and (c) any obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account of such
Person.
"Index Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Competitive Loans at
an interest rate equal to the Applicable Index Rate plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is Insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
8
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December, commencing on the
first of such days to occur after Alternate Base Rate Loans are made, (b) as
to any Eurodollar Loan in respect of which the Company has selected an
Interest Period of one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of which the Company has
selected a longer Interest Period than the periods described in clause (b)
above, the last day of each March, June, September and December falling
within such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan, the
period commencing on the Borrowing Date with respect to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by the
Company in its notice of borrowing as provided in subsection 2.1(d);
(b) with respect to any Alternate Base Rate Loan, the period
commencing on the Borrowing Date with respect to such Alternate Base Rate
Loan and ending on the earliest to occur of the last day of March, June,
September or December following such Borrowing Date;
(c) with respect to any Competitive Loan made pursuant to a
Competitive Loan Request, the period commencing on the Competitive Loan Date
with respect to such Competitive Loan and ending on the date not less than 7
nor more than 180 days thereafter, as specified by the Company in such
Competitive Loan Request;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan or a
Competitive Loan made pursuant to an Index Rate Competitive Loan
Request would otherwise end on a day which is not a Working Day, that
Interest Period shall be extended to the next succeeding Working Day
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
(B) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Working Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Working Day
of a calendar month;
(C) if any Interest Period pertaining to an Alternate Base Rate
Loan or a Competitive Loan made pursuant to an Absolute Rate
Competitive Loan Request would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day;
(D) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on such Maturity Date; and
(E) the Company shall select Interest Periods so as not to
require a prepayment of any Eurodollar Loan during an Interest Period
for such Loan.
9
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any Financing Lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Loan" and "Loans": the collective reference to the Revolving Credit
Loans and the Competitive Loans.
"Loan Commitment": as to any Lender, the obligation of such Lender,
if any, to make Revolving Credit Loans in an aggregate principal amount not
to exceed the amount set forth under the heading ALoan Commitment" opposite
such Lender's name on Schedule 1.1 or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof (including, without
limitation, pursuant to the provisions of the second sentence of subsection
2.1(a)). The original aggregate amount of the Loan Commitments is
$400,000,000.
"Margin Stock": Amargin stock" as such term is defined in Regulation
U of the Board of Governors of the Federal Reserve System.
"Maturity Date": at any time, the date that is one year after the
Termination Date then in effect.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to any promissory notes evidencing
Loans.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any Note.
"Participants": as defined in subsection 9.6(b).
"Payment Sharing Notice": a written notice from the Company, or any
Lender, informing the Administrative Agent that an Event of Default has
occurred and is continuing and directing the Administrative Agent to allocate
payments thereafter received from the Company in accordance with subsection
2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
10
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at any particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate": the rate of interest publicly announced by The Chase
Manhattan Bank in New York, New York from time to time as its prime rate.
The Prime Rate is not intended to be the lowest rate of interest charged by
The Chase Manhattan Bank in connection with extensions of credit to debtors.
"Purchasing Lenders": as defined in subsection 9.6(d).
"Ratings": the ratings of Xxxxx'x and S&P applicable to the
Company's senior unsecured non-credit-enhanced long-term debt obligations.
"Refunding Borrowing": a borrowing of Revolving Credit Loans which,
after application of the proceeds thereof, results in no net increase in the
aggregate outstanding principal amount of Revolving Credit Loans made by any
Lender.
"Register": as defined in subsection 9.6(e).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term
as used in Section 4245 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder.
"Required Lenders": at any date, Lenders having Loan Commitments
aggregating over one-half of the total Loan Commitments (or, at any time the
Loan Commitments have expired or terminated, the Lenders having over one-half
of the total Loans then outstanding).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Reserve Percentage": for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor), for determining
the maximum reserve requirement for a Depository Institution (as defined in
Regulation D of such Board as in effect from time to time) in respect of new
non-personal time deposits in Dollars having a maturity of 30 days or more.
11
"Responsible Officer": the Chief Executive Officer or the President
of the Company or, with respect to financial matters, the Chief Financial
Officer of the Company.
"Revolving Credit Loans": Loans made pursuant to subsection 2.1;
individually a "Revolving Credit Loan."
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership, limited liability company or other entity
are at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Company.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": June 25, 2001 or such earlier date on which the
Loan Commitments are terminated, or such later date to which the Termination
Date shall be extended pursuant to subsection 2.16 hereof.
"Transfer Effective Date": as defined in each Assignment and
Acceptance.
"Transferees": as defined in subsection 9.6(g).
"Type": as to any Revolving Credit Loan, its nature as an Alternate
Base Rate Loan or a Eurodollar Loan.
"Utilization Fee": as defined in subsection 2.4(b).
"Working Day": any day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England and in New York,
New York.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
herein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) as used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to the Company and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include," "includes" and "including" shall be deemed to be
followed by the phrase
12
"without limitation," (iii) the word "incur" shall be construed to mean
incur, create, issue, assume or become liable in respect of (and the words
"incurred" and "incurrence" shall have correlative meanings), and (iv) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans (individually a "Revolving Credit Loan") to the Company from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the amount of such Lender's Loan Commitment;
provided that no Revolving Credit Loan shall be made hereunder which would
result in the Aggregate Loans outstanding hereunder being in excess of the
Loan Commitments then in effect. During the Commitment Period the Company
may use the Loan Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof, provided, that the Loan Commitments shall be reduced
on the Termination Date to an amount equal to the amount of the Aggregate
Loans then outstanding and, if the Aggregate Loans shall at any time or from
time to time be reduced thereafter, the Loan Commitments shall be reduced pro
rata simultaneously by an amount equal to such reduction in the Aggregate
Loans, and provided, further, that on and after the Termination Date, no
Revolving Credit Loans may be made which are not Refunding Borrowings or
Revolving Credit Loans the proceeds of which are used to repay maturing
Competitive Loans.
(b) No Eurodollar Loan shall be made after the date that is 30 days
prior to the Maturity Date.
(c) Each Revolving Credit Loan shall finally mature on the Maturity
Date. Each Revolving Credit Loan shall bear interest on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate
per annum determined as provided in, and shall be payable on the dates
specified in, subsections 2.8 and 2.9.
(d) The Company may borrow under the Loan Commitments during the
Commitment Period on any Working Day if the borrowing is a Eurodollar Loan or
on any Business Day if the borrowing is an Alternate Base Rate Loan; provided
that the Company shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 10:00
A.M., New York City time, (a) 3 Working Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, and (b) 1 Business Day prior to the
requested Borrowing Date, in the case of Alternate Base Rate). Each such
notice shall be given in writing, by telex or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions) or shall
be given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing, by telex or by facsimile
transmission substantially in the form of Exhibit A (with
13
appropriate insertions). Each borrowing pursuant to the Loan Commitments
shall be in an aggregate principal amount equal to (a) the lesser of, in the
case of Alternate Base Rate Loans, (i) $10,000,000 or a whole multiple of
$1,000,000 in excess thereof, and (ii) the Available Loan Commitments and (b)
in the case of Eurodollar Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of such notice from the Company
the Administrative Agent shall promptly notify each Lender thereof. Each
Lender will make the amount of its share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent set forth in subsection 9.2 at or before 11:00 A.M. on
the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Loans will then be made available to the Company by the
Administrative Agent at the office of the Administrative Agent specified in
subsection 9.2 by crediting the account of the Company on the books of such
office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(e) If any Lender makes a Revolving Credit Loan on a day on which the
Company is to repay all or any part of any outstanding Revolving Credit Loan
from such Lender, such Lender shall apply the proceeds of the requested
Revolving Credit Loan to make such repayment, and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Lender to the Administrative Agent as
provided in paragraph (c) above, or remitted by the Company to the
Administrative Agent for the account of such Lender as provided in subsection
2.6, as the case may be.
(2.2) The Competitive Loans. (a) The Lenders may make Competitive
Loans to the Company from time to time on any Business Day (in the case of
Competitive Loans made pursuant to an Absolute Rate Competitive Loan Request)
or any Working Day (in the case of Competitive Loans made pursuant to an
Index Rate Competitive Loan Request) during the period from the Closing Date
until the date occurring 14 days prior to the Maturity Date in the manner set
forth in this subsection 2.2 and in amounts such that the Aggregate Loans at
any time outstanding shall not exceed the aggregate amount of the Loan
Commitments at such time; provided, however, that the aggregate principal
amount of the outstanding Competitive Loans of a Lender may (but shall not be
required to) exceed its Loan Commitment.
(b) The Company shall request Competitive Loans by delivering a
Competitive Loan Request to the Administrative Agent, not later than 12:00
Noon (New York City time) four Working Days prior to the proposed Competitive
Loan Date (in the case of an Index Rate Competitive Loan Request), and not
later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Competitive Loan Date (in the case of an Absolute Rate Competitive
Loan Request); provided that (i) an Index Rate Competitive Loan request shall
not be made until at least one Business Day has passed since the most recent
Competitive Loan Date and (ii) an Absolute Rate Competitive Loan Request
shall not be made until at least four Business Days have passed since the
most recent Competitive Loan Date. Each Competitive Loan Request may solicit
bids for Competitive Loans in an aggregate principal amount of $10,000,000 or
an integral multiple in excess of $1,000,000 thereof and for not more than
three alternative maturity dates
14
for such Competitive Loans. The maturity date for each Competitive Loan
shall be not less than 7 days nor more than 180 days after the Competitive
Loan Date therefor (and in any event not after the Maturity Date and in any
event subject to the proviso to the definition of "Interest Period"). The
Administrative Agent shall promptly notify each Lender by telex or facsimile
transmission of the contents of each Competitive Loan Request received by it.
(ii) In the case of an Index Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at the Applicable Index Rate plus or minus a margin for
each such Competitive Loan determined by such Competitive Loan Lender in its
sole discretion. Any such irrevocable offer shall be made by delivering a
Competitive Loan Offer to the Administrative Agent, before 10:30 A.M. (New
York City time) three Working Days before the proposed Competitive Loan Date,
setting forth the maximum amount of Competitive Loans for each maturity date,
and the aggregate maximum amount for all maturity dates, which such Lender
would be willing to make (which amounts may, subject to subsection 2.2(a),
exceed such Competitive Loan Lender's Loan Commitment) and the margin above
or below the Applicable Index Rate at which such Competitive Loan Lender is
willing to make each such Competitive Loan; the Administrative Agent shall
advise the Company before 11:15 A.M. (New York City time) three Working Days
before the proposed Competitive Loan Date, of the contents of each such
Competitive Loan Offer received by it. If the Administrative Agent in its
capacity as a Competitive Loan Lender shall, in its sole discretion, elect to
make any such offer, it shall advise the Company of the contents of its
Competitive Loan Offer before 10:15 A.M. (New York City time) three Working
Days before the proposed Competitive Loan Date.
(iii) In the case of an Absolute Rate Competitive Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such
Competitive Loan Request, any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at a rate or rates of interest for each such Competitive
Loan determined by such Competitive Loan Lender in its sole discretion. Any
such irrevocable offer shall be made by delivering a Competitive Loan Offer
to the Administrative Agent, before 9:30 A.M. (New York City time) on the
proposed Competitive Loan Date, setting forth the maximum amount of
Competitive Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Competitive Loan Lender would be willing
to make (which amounts may, subject to subsection 2.2(a), exceed such
Competitive Loan Lender's Loan Commitment) and the rate or rates of interest
at which such Competitive Loan Lender is willing to make each such
Competitive Loan; the Administrative Agent shall advise the Company before
10:15 A.M. (New York City time) on the proposed Competitive Loan Date of the
contents of each such Competitive Loan Offer received by it. If the
Administrative Agent in its capacity as a Competitive Loan Lender shall, in
its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Competitive Loan Offer before 9:15 A.M. (New
York City time) on the proposed Competitive Loan Date.
(iv) The Company shall before 11:30 A.M. (New York City time) three
Working Days before the proposed Competitive Loan Date (in the case of
Competitive Loans requested by an Index Rate Competitive Loan Request) and
before 10:30 A.M. (New York City time) on the
15
proposed Competitive Loan Date (in the case of Competitive Loans requested by
an Absolute Rate Competitive Loan Request) either, in its absolute
discretion:
(A) cancel such Competitive Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Competitive Loan
Lender or Competitive Loan Lenders pursuant to clause (ii) or clause (iii)
above, as the case may be, by giving telephone notice to the Administrative
Agent (immediately confirmed by delivery to the Administrative Agent of a
Competitive Loan Confirmation) of the amount of Competitive Loans for each
relevant maturity date to be made by each Competitive Loan Lender (which
amount for each such maturity date shall be equal to or less than the maximum
amount for such maturity date specified in the Competitive Loan Offer of such
Competitive Loan Lender, and for all maturity dates included in such
Competitive Loan Offer shall be equal to or less than the aggregate maximum
amount specified in such Competitive Loan Offer for all such maturity dates)
and reject any remaining offers made by Competitive Loan Lenders pursuant to
clause (ii) or clause (iii) above, as the case may be; provided, however,
that (x) the Company may not accept offers for Competitive Loans for any
maturity date in an aggregate principal amount in excess of the maximum
principal amount requested in the related Competitive Loan Request, (y) if
the Company accepts any of such offers, it must accept offers strictly based
upon pricing for such relevant maturity date and no other criteria whatsoever
and (z) if two or more Competitive Loan Lenders submit offers for any
maturity date at identical pricing and the Company accepts any of such offers
but does not wish to borrow the total amount offered by such Competitive Loan
Lenders with such identical pricing, the Company shall accept offers from all
of such Competitive Loan Lenders in amounts allocated among them pro rata
according to the amounts offered by such Competitive Loan Lenders (or as
nearly pro rata as shall be practicable after giving effect to the
requirement that any Competitive Loans made by a Competitive Loan Lender on a
Competitive Loan Date for each relevant maturity date shall be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
it being agreed that to the extent that it is impossible to make allocations
in accordance with the provisions of this clause (B) such allocations shall
be made in accordance with the instructions of the Company).
(v) If the Company notifies the Administrative Agent that a
Competitive Loan Request is cancelled pursuant to clause (iv) (A) above, the
Administrative Agent shall give prompt telephone notice thereof to the
Competitive Loan Lenders, and the Competitive Loans requested thereby shall
not be made.
(vi) If the Company accepts pursuant to clause (iv) (B) above one or
more of the offers made by any Competitive Loan Lender or Competitive Loan
Lenders, the Administrative Agent shall promptly notify each Competitive Loan
Lender which has made such an offer, of the aggregate amount of such
Competitive Loans to be made on such Competitive Loan Date for each maturity
date and of the acceptance or rejection of any offers to make such
Competitive Loans made by such Competitive Loan Lender. Each Competitive
Loan Lender which is to make a Competitive Loan shall, before 12:00 Noon (New
York City time) on the Competitive Loan Date specified in the Competitive
Loan Request applicable thereto, make available to the Administrative Agent
at its office set forth in subsection 9.2 the amount of Competitive Loans to
be made by such Competitive Loan Lender, in immediately available funds. The
Administrative
16
Agent will make such funds available to the Company as soon as practicable on
such date at the Administrative Agent's aforesaid address. As soon as
practicable after each Competitive Loan Date, the Administrative Agent shall
notify each Lender of the aggregate amount of Competitive Loans advanced on
such Competitive Loan Date and the respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in this
subsection 2.2, the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and reborrow under
this subsection 2.2.
(d) The Company shall repay to the Administrative Agent for the
account of each Competitive Loan Lender which has made a Competitive Loan (or
the Competitive Loan Assignee in respect thereof, as the case may be) on the
maturity date of each Competitive Loan (such maturity date being that
specified by the Company for repayment of such Competitive Loan in the
related Competitive Loan Request) the then unpaid principal amount of such
Competitive Loan. The Company shall not have the right to prepay any
principal amount of any Competitive Loan.
(e) The Company shall pay interest on the unpaid principal amount of
each Competitive Loan from the Competitive Loan Date to the stated maturity
date thereof, at the rate of interest determined pursuant to paragraph (b)
above (calculated on the basis of a 360 day year for actual days elapsed),
payable on the interest payment date or dates specified by the Company for
such Competitive Loan in the related Competitive Loan Request. If all or a
portion of the principal amount of any Competitive Loan shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue principal amount shall, without limiting any rights of any Lender
under this Agreement, bear interest from the date on which such payment was
due at a rate per annum which is 2% above the rate which would otherwise be
applicable thereto until the scheduled maturity date with respect thereto,
and for each day thereafter at a rate per annum which is 2% above the
Alternate Base Rate until paid in full (as well after as before judgment).
2.3 Type of Revolving Credit Loans. The Revolving Credit Loans may
be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii) a
combination thereof. Each borrowing of Revolving Credit Loans shall be in an
aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000
in excess thereof.
2.4 Fees. (a) The Company agrees to pay, in immediately available
funds, to the Administrative Agent for the account of each Lender a facility
fee (a "Facility Fee") for the period from and including the date of this
Agreement to, but excluding, the Maturity Date, payable quarterly in arrears
on the last day of each March, June, September and December and on the
Maturity Date (or such earlier date on which the Loan Commitments shall
terminate and the Loans and all interest, fees and other amounts in respect
thereof shall have been paid in full), commencing on the first of such dates
to occur after the date hereof, at a rate per annum equal to the Applicable
Facility Fee Percentage from time to time in effect on each Lender's portion
of the daily average Loan Commitments in effect, whether used or unused,
during the period for which payment is being made.
17
(b) The Company agrees to pay to the Administrative Agent for the
account of each Lender a fee (the "Utilization Fee") based upon the average
daily amount of the outstanding Loans at a rate per annum equal to 0.05%,
when and for as long as the aggregate outstanding principal amount of the
Loans exceeds 50% of (i) until the Termination Date, the aggregate amount of
the Loan Commitments and (ii) from the Termination Date through the Maturity
Date, the aggregate amount of the Loan Commitments in effect on the
Termination Date immediately prior to giving effect to any reduction thereof
required to occur on such date pursuant to the first proviso of the second
sentence of subsection 2.1(a). The Utilization Fee shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on the first of such dates to occur after the date
hereof, and on the Maturity Date (or such earlier date on which the Loan
Commitments shall terminate and the Loans and all interest, fees and other
amounts in respect thereof shall have been paid in full).
2.5 Termination or Reduction of Loan Commitments. The Company shall
have the right, upon not less than 5 Business Days' notice to the
Administrative Agent, to terminate the Loan Commitments or, from time to
time, to reduce pro rata the amount of the Loan Commitments, provided that
(a) any such reduction shall be accompanied by prepayment of the Revolving
Credit Loans, together with accrued interest on the amount so prepaid to the
date of such prepayment, to the extent, if any, that the amount of the
Revolving Credit Loans then outstanding exceeds the amount of the Loan
Commitments as then reduced, (b) any such termination of the Loan Commitments
shall be accompanied by prepayment in full of the Revolving Credit Loans then
outstanding, together with accrued interest thereon to the date of such
prepayment, and the payment of any unpaid Facility Fee or Utilization Fee
then accrued hereunder and (c) any termination of the Loan Commitments while
Eurodollar Loans are outstanding and any reduction of the aggregate amount of
the Loan Commitments that reduces the amount of the Loan Commitments below
the principal amount of the Eurodollar Loans then outstanding may be made
only on the last day of the respective Interest Periods for such Eurodollar
Loans. Any such reduction shall be in an amount of $10,000,000 or a whole
multiple thereof, and shall reduce permanently the amount of the Loan
Commitments then in effect.
2.6 Repayment of Loans. Subject to subsection 2.1(e), the Company
will pay to the Administrative Agent for the account of each Lender the
unpaid principal amount of each Revolving Credit Loan made by such Lender,
plus all interest accrued thereon, on the last day of the Interest Period
applicable thereto.
2.7 Optional Prepayments. (a) The Company may on the last day of
the relevant Interest Period if the Loans to be prepaid are in whole or in
part Eurodollar Loans, or at any time and from time to time if the Loans to
be prepaid are Alternate Base Rate Loans, prepay the Revolving Credit Loans,
in whole or in part, without premium or penalty, upon at least three Business
Days' (in the case of Eurodollar Loans) or one Business Day's (in the case of
Alternate Base Rate Loans) irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or Alternate Base Rate Loans or a combination thereof, and
if of a combination thereof, the amount of prepayment allocable to each.
Upon receipt of such notice the Administrative Agent shall promptly notify
each Lender thereof. If such notice is given, the Company shall make such
prepayment, and the payment amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $10,000,000 or a whole multiple
18
thereof, and may only be made if, after giving effect thereto, subsection
2.7(c) shall not have been contravened.
(b) The Company may not prepay Competitive Loans without the consent
of the relevant Lender.
(c) All payments and prepayments hereunder shall be in such amounts
and be made pursuant to such elections so that, after giving effect thereto,
the aggregate principal amount of the Revolving Credit Loans which are
Eurodollar Loans having the same Interest Period shall not be less than
$10,000,000.
2.8 Interest Rate and Payment Dates. (a) The Eurodollar Loans shall
bear interest for each Interest Period with respect thereto on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period
from and including the date thereof until maturity on the unpaid principal
amount thereof at a rate per annum equal to the Alternate Base Rate.
(c)(i) If all or a portion of the principal amount of any Loan shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal
to the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection 2.8 plus 2%, and (ii) if all or a
portion of any interest payable on any Loan or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Alternate
Base Rate Loans plus 2%, in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection 2.8 shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) All interest in respect
of Alternate Base Rate Loans shall be calculated on the basis of a 360 day
year for the actual days elapsed, except where the applicable interest rate
for such Loan is the Prime Rate, in which case the rate per annum shall be
computed on the basis of a 365 (or 366 as the case may be) day year for the
actual days elapsed. Facility Fees, Utilization Fees and interest in respect
of Eurodollar Loans shall be calculated on the basis of a 360 day year for
the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate, the Applicable Margin or the Reserve
Percentage shall become effective as of the opening of business on the day on
which such change in the Alternate Base Rate is announced or such Applicable
Margin changes as provided herein or such change in the Reserve Percentage
shall become effective. The Administrative Agent shall as soon as
practicable notify the Company and the Lenders of the effective date and the
amount of each such change.
19
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent
in determining any interest rate pursuant to subsection 2.8 (a) or (c).
2.1 Inability to Determine Interest Rate. (a) In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for any requested Interest
Period with respect to proposed Loans that the Company has requested be made
as Eurodollar Loans, the Administrative Agent shall forthwith give telex or
facsimile notice of such determination, confirmed in writing, to the Company
and the Lenders at least one day prior to the requested Borrowing Date for
such Eurodollar Loans. If such notice is given any requested Eurodollar
Loans shall be made as Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be
made.
(b) In the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Company) that
by reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period with respect to proposed Competitive Loans to be
made pursuant to an Index Rate Competitive Loan Request, the Administrative
Agent shall forthwith give telex, telecopy or telephone notice of such
determination, confirmed in writing, to the Company and the Lenders at least
two Business Days prior to the proposed Competitive Loan Date, and such
Competitive Loans shall not be made on such Competitive Loan Date. Until any
such notice has been withdrawn by the Administrative Agent, no further Index
Rate Competitive Loan Requests shall be submitted by the Company.
2.11 Pro Rata Borrowings and Payments. (a) Each borrowing by the
Company of Revolving Credit Loans shall be made ratably from the Lenders in
accordance with their Commitment Percentages.
(b) Whenever any payment received by the Administrative Agent under
this Agreement is insufficient to pay in full all amounts then due and
payable to the Administrative Agent and the Lenders under this Agreement, and
the Administrative Agent has not received a Payment Sharing Notice (or if the
Administrative Agent has received a Payment Sharing Notice but the Event of
Default specified in such Payment Sharing Notice has been cured or waived),
such payment shall be distributed and applied by the Administrative Agent and
the Lenders in the following order: first, to the payment of fees and
expenses due and payable to the Administrative Agent, acting as
Administrative Agent for the benefit of the Lenders, under and in connection
with this Agreement; second, to the payment of all expenses due and payable
under subsection 9.5, ratably among the Lenders in accordance with the
aggregate amount of such payments owed to each such Lender; third, to the
payment of fees due and payable under subsection 2.4, ratably among the
Lenders in accordance with their Commitment Percentages; fourth, to the
payment of interest then due and payable under this Agreement, ratably among
the Lenders in accordance with the aggregate amount of interest owed to each
such Lender; and fifth, to the payment of the
20
principal amount of the Loans which is then due and payable, ratably among
the Lenders in accordance with the aggregate principal amount owed to each
such Lender.
(c) After the Administrative Agent has received a Payment Sharing
Notice which remains in effect, all payments received by the Administrative
Agent under this Agreement shall be distributed and applied by the
Administrative Agent and the Lenders in the following order: first, to the
payment of all amounts described in clauses first through third of the
foregoing paragraph (b), in the order set forth therein; and second, to the
payment of the interest accrued on and the principal amount of all of the
Loans, regardless of whether any such amount is then due and payable, ratably
among the Lenders in accordance with the aggregate accrued interest plus the
aggregate principal amount owed to such Lender.
(d) All payments (including prepayments) to be made by the Company
on account of principal, interest and fees shall be made without set-off or
counterclaim and shall be made to the Administrative Agent for the account of
the Lenders at the Administrative Agent's office specified in subsection 9.2
in Dollars and in immediately available funds. The Administrative Agent
shall distribute such payments to the Lenders entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder of fees or
principal of or interest on Alternate Base Rate Loans or Competitive Loans
made pursuant to an Absolute Rate Competitive Loan Request, becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable during such extension at the rate then
applicable thereunder.
2.12 Taxes (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the
amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that the Company
shall not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such Lender's
failure to comply with the requirements of paragraph (d) or (e) of this
subsection 2.12 or failure to obtain either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service Form 1001 or any applicable
successor form from any Transferee that is a Participant or a Competitive
Loan Assignee certifying that such Participant is entitled to receive
payments under this Agreement
21
without deduction or withholding of any United States federal income taxes or
(ii) that are United States withholding taxes imposed on amounts payable to
such Lender at the time the Lender becomes a party to this Agreement, except
to the extent that such Lender's assignor (if any) was entitled, at the time
of assignment, to receive additional amounts from the Company with respect to
such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Company, as promptly as possible thereafter the Company shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Company, or other evidence of payment reasonably satisfactory
to the Administrative Agent, showing payment thereof. If the Company fails
to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Company shall indemnify
the Administrative Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
(d) (i) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of
America (or any jurisdiction thereof), or any estate or trust that is subject
to federal income taxation regardless of the source of its income (a "Non-
U.S. Lender") shall deliver to the Company and the Administrative Agent (or,
in the case of a Participant, to the Lender from which the related
participation shall have been purchased, and in the case of a Competitive
Loan Assignee, to the Lender from which the related Competitive Loan shall
have been assigned) two copies of (A) either (1) U.S. Internal Revenue
Service Form 1001 or Form 4224, or (2) in the case of a Non-U.S. Lender that
does not meet the requirements of the documents described in clause (1)
hereof claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio
interest," a statement substantially in the form of Exhibit E and (B) a Form
W-8 or W-9, including, where applicable, with respect to both clauses (1) and
(2) above, any such forms required to be provided to certify to such
exemption on behalf of such Non-U.S. Lender's beneficial owners, or, in each
case, any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Company under this Agreement and any Notes. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a party
to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation, and in the case of a
Competitive Loan Assignee, on or before the date of such Competitive Loan
Assignment). In addition, each Non-U.S. Lender shall deliver such forms
(and, where applicable, any such forms on behalf of its beneficial owners)
promptly upon the obsolescence or invalidity of any form previously delivered
by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the
Company at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Company (or any other
form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding
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any other provision of this paragraph, a Non-U.S. Lender shall not be
required to deliver any form pursuant to this paragraph that such Non-U.S.
Lender is not legally able to deliver.
(ii) Each Lender which is not a Non-U.S. Lender shall deliver to the
Company and the Administrative Agent (or, in the case of a Participant, to
the Lender from which the related participation shall have been purchased,
and in the case of a Competitive Loan Assignee, to the Lender from which the
related Competitive Loan shall have been assigned) two copies of a statement
which shall contain the address of such Lender's office or place of business
in the United States and shall be signed by an authorized officer of such
Lender, together with two duly completed copies of Form W-9 (or any
applicable successor form) unless it establishes to the satisfaction of the
Company that it is otherwise eligible for an exemption from backup
withholding tax or other applicable withholding tax. Each such Lender shall
deliver to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the Lender
from which the related Competitive Loan shall have been assigned) two further
duly completed and signed forms and statements (or successor forms) at or
before the time any such form or statement becomes obsolete.
(iii) Each Lender agrees to indemnify and hold harmless the Company
and the Administrative Agent from and against any taxes imposed by or on
behalf of the United States or any taxing jurisdiction thereof, penalties,
additions to tax, fines, interest or other liabilities, costs or losses,
including, without limitation, reasonable attorney's fees and expenses
incurred or payable by the Company or the Administrative Agent as a result of
the failure of the Company or the Administrative Agent to comply with its
obligations to deduct or withhold any taxes imposed by or on behalf of the
United States or any taxing jurisdiction thereof (including penalties,
additions to tax, fines or interest on such taxes) from any payments made
pursuant to this Agreement which failure resulted from the Company's or the
Administrative Agent's reliance on any representation, covenant, form,
statement, certificate or other information provided to it by such Lender
pursuant to this subsection 2.12(d).
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Company, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially prejudice the legal
position of such Lender.
(f) Without limiting the other provisions of this subsection 2.12,
each Lender claiming entitlement to additional amounts under this subsection
2.12 agrees to use reasonable efforts, including designating a different
lending office for funding or booking its Loans hereunder, to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
subsection; provided, however, that such efforts shall not cause the
imposition on such
23
Lender of any additional costs or legal or regulatory burdens deemed in the
sole reasonable judgment of such Lender to be material.
(g) If any Lender or Participant identifies a refund of or credit
with respect to an amount of taxes with respect to which the Company paid to
or on behalf of such Lender an additional amount pursuant to this subsection
2.12 (a "Tax Credit"), the Lender shall promptly notify the Company of such
Tax Credit. The Lender shall use commercially reasonable efforts to take
such action as, in the sole reasonable discretion of the Lender, is then
practicable under the circumstances to give the benefit of such Tax Credit to
the Company.
(h) The Company shall be permitted to replace any Lender that (i)
requests reimbursement for amounts owing pursuant to subsection 2.12(a) or
2.14 or (ii) defaults in its obligation to make Loans hereunder, with a
replacement financial institution; provided that (A) such replacement does
not conflict with any Requirement of Law, (B) no Event of Default shall have
occurred and be continuing at the time of such replacement, (C) prior to any
such replacement, such Lender shall have taken no action under subsection
2.12(f) so as to eliminate the continued need for payment of amounts owing
pursuant to subsection 2.12(a) or 2.14, (D) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (E) the Company shall
be liable to such replaced Lender under subsection 2.15 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last
day of the Interest Period relating thereto, (F) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (G) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of subsection 9.6 (provided
that the Company shall be obligated to pay the registration and processing
fee referred to therein), (H) until such time as such replacement shall be
consummated, the Company shall pay all additional amounts (if any) required
pursuant to subsection 2.12(a) or 2.14, as the case may be, and (I) any such
replacement shall not be deemed to be a waiver of any rights that the
Company, the Administrative Agent or any other Lender shall have against the
replaced Lender.
(i) The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.13 Illegality. Notwithstanding any other provisions herein, if
any Requirement of Law or any change therein or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of
such Lender hereunder to make Eurodollar Loans shall forthwith be cancelled
and (b) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Alternate Base Rate Loans on the
respective next succeeding Interest Payment Date(s) for such Loans or within
such earlier period as required by law. The Company hereby agrees promptly
to pay any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this subsection 2.13 including, but not limited
to, any interest or fees payable by such Lender to lenders of funds obtained
by it in order to make or maintain its Eurodollar Loans hereunder (such
Lender's notice of such costs, as certified to the Company through the
Administrative Agent, to be conclusive absent manifest error).
24
2.14 Requirements of Law. Subject to subsection 2.12:
(a) In the event that any Requirement of Law or any change therein
or in the interpretation or application thereof or compliance by any Lender
with any request or directive (whether or not having the force of law) from
any central bank or other Governmental Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loans made by it,
or change the basis of taxation of payments to such Lender of principal,
fees, interest or any other amount payable hereunder (except for changes in
the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender which are not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing or maintaining advances or extensions of credit or to
reduce any amount receivable hereunder, in each case, in respect of its
Eurodollar Loans, then, in any such case, the Company shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable which such
Lender deems to be material as determined by such Lender with respect to such
Eurodollar Loans. If a Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Company,
through the Administrative Agent, of the event by reason of which it has
become so entitled.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule or regulation regarding capital adequacy, or any
change therein or in the interpretation or application thereof or compliance
by such Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any central bank or Governmental Authority, does or shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender, the Company shall pay to such Lender such
additional amount as shall be requested by such Lender as being required to
compensate it for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender (with a copy to the Administrative
Agent) to the Company shall be conclusive in the absence of manifest error.
This subsection 2.14 shall survive the termination of this Agreement and
payment of the Loans and all other amounts payable hereunder.
25
2.15 Indemnity. The Company agrees to indemnify each Lender and to
hold such Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Company in payment of
the principal amount of or interest on any Eurodollar Loans of such Lender,
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans hereunder, (b) default by the Company
in making a borrowing after the Company has given a notice in accordance with
subsection 2.1(d) or 2.2(b)(iv)(B), including, but not limited to, any such
loss or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it to make or maintain its Eurodollar Loans
hereunder and (c) default by the Company in making any prepayment after the
Company has given a notice in accordance with subsection 2.7 or (d) a
prepayment, voluntary or involuntary, of a Eurodollar Loan on a day which is
not the last day of an Interest Period with respect thereto, including, but
not limited to, any such loss or expense arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder. This subsection 2.15 shall survive
termination of this Agreement and payment of the Loans and all other amounts
payable hereunder.
2.16 Extension of Termination Date. (a) On or before the date which
is 45 days (but no more than 60 days) prior to the then-existing Termination
Date, the Company may make a request to the Administrative Agent (which shall
promptly notify each Lender of its receipt of such request) on behalf of the
Lenders for an extension of the then-existing Termination Date to the date
364 days after the then-existing Termination Date.
(b) In the case of each requested extension, each Lender shall
promptly (and in no case later than the date (the "Decision Date") 30 days
prior to the then-existing Termination Date) notify the Administrative Agent
as to whether or not in such Lender's sole discretion such Lender consents to
such extension. The Administrative Agent shall notify the Borrower on the
Business Day immediately following such Decision Date as to which Lenders
shall have consented to such request and which Lenders shall not have
consented to such request (any Lender not providing any notice to the
Administrative Agent by the Decision Date being deemed not to have consented
to such request). The then-existing Termination Date shall be extended only
if (i) Lenders having Loan Commitments aggregating at least 75% of the total
Loan Commitments consent and (ii) either (A) all non-consenting Lenders have
been replaced by replacement banks or other financial institutions in
accordance with the provisions of subsection 9.6 hereof such that the
aggregate amount of Loan Commitments is not reduced or (B) in the event that
not all non-consenting Lenders have been replaced, the Company notifies the
Administrative Agent that it wishes to extend the then-existing Termination
Date notwithstanding the reduced amount of aggregate Loan Commitments and
each consenting Lender and each replacement bank or other financial
institution in its sole discretion consents to such extension after receiving
notice of such reduced amount of aggregate Loan Commitments; provided, that
the Termination Date shall be extended pursuant to this subsection 2.16 no
more than twice. In the event that the then-existing Termination Date is
extended pursuant to clause (ii)(B) of the preceding sentence, on the then-
existing Termination Date the Company shall pay to the Administrative Agent,
for the benefit of each non-consenting Lender that is not replaced with a
replacement bank or other financial institution, all amounts due with respect
to such non-consenting Lender.
26
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans herein provided for, the Company hereby
represents and warrants to the Administrative Agent and to each Lender that:
3.1 Financial Condition. The consolidated balance sheets of the
Company and its consolidated Subsidiaries as at December 31, 1998 and
December 31, 1999 and the related consolidated statements of income and
stockholders' equity and cash flow for the fiscal years ended on such dates,
reported on by PricewaterhouseCoopers LLP, copies of which have heretofore
been furnished to each Lender, are complete and correct in all material
respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position
for the fiscal years then ended. The unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at March 31, 2000 and the
related unaudited consolidated statements of income and cash flow for the
three-month period ended on such date, copies of which have heretofore been
furnished to each Lender, are complete and correct in all material respects
and present fairly the consolidated financial condition of the Company and
its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and cash flow for the three-month period then ended
(subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved. Neither the Company nor any of its consolidated Subsidiaries had
on March 31, 2000 any material Guarantee Obligation, contingent liabilities
or liability for taxes, long-term lease or unusual forward or long-term
commitment, which is not reflected in the unaudited consolidated balance
sheet as at March 31, 2000 or in the notes thereto.
3.2 No Change. Since December 31, 1999 there has been no material
adverse change in the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
3.3 Corporate Existence; Compliance with Law. Each of the Company
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification and where the failure to be so qualified would
have a material adverse effect upon the business operations, property or
financial or other condition of the Company and its Subsidiaries taken as a
whole and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole and could not materially adversely affect the
ability of the Company to perform its obligations under this Agreement.
27
3.4 Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and any Note and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement and any Note. No consent or
authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any Note. This Agreement has been, and
any Note will be, duly executed and delivered on behalf of the Company. This
Agreement constitutes, and any Note when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement is sought
by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and any Note, the borrowings hereunder and the use of the proceeds
thereof, will not violate any Requirement of Law or any Contractual
Obligation of the Company or of any of its Subsidiaries, and will not result
in, or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company or
any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to this Agreement or any Note or any of the
transactions contemplated hereby, or (b) which could reasonably be expected
to have a material adverse effect on the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken as a
whole.
3.7 No Default. Neither the Company nor any of its Subsidiaries is
in default in any material respect under or with respect to any Contractual
Obligation which could reasonably be expected to be materially adverse to the
business, operations, property or financial or other condition of the Company
and its Subsidiaries taken as a whole or which could materially adversely
affect the ability of the Company or any Subsidiary to perform its
obligations under this Agreement and any Note. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to or valid
leasehold interests in all its real property which is material to the Company
and its Subsidiaries, and good title to all its other property which is
material to the Company and its Subsidiaries and none of such property is
subject to any Lien of any nature whatsoever which is prohibited by
subsection 6.1 hereof.
3.9 No Burdensome Restrictions. No Contractual Obligation of the
Company or any of its Subsidiaries and no Requirement of Law materially
adversely affects, or insofar as the Company may reasonably foresee may so
affect, the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole.
28
3.10 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed all material tax returns which to the reasonable knowledge
of the Company are required to be filed and has paid all taxes shown to be
due and payable on said returns or on any assessment made against it or any
of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as
the case may be, or which are otherwise individually or in the aggregate not
material); and no tax liens have been filed and, to the reasonable knowledge
of the Company, no claims are being asserted with respect to any such taxes,
fees or other charges.
3.11 Federal Regulations. No part of the proceeds of any Loans
hereunder will be used for the purpose, whether immediate, incidental, or
ultimate, of purchasing any Margin Stock of any corporation or carrying any
Margin Stock of any corporation, or for any purpose which violates Regulation
U of the Board of Governors of the Federal Reserve System, or which would be
inconsistent with or violate, the provisions of any of the Regulations of
such Board of Governors. If requested by any Lender or the Administrative
Agent, the Company will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U.
3.12 ERISA. None of the Company, any of its Subsidiaries or any
commonly controlled entity has incurred any material liability related to the
withdrawal from any Multiemployer Plan or the termination of any Single
Employer Plan. The withdrawal by the Company or any of its Subsidiaries or
any Commonly Controlled Entity from all Multiemployer Plans in which they
participate would not have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole. The Company has not been notified that any
Multiemployer Plan to which the Company, any of its Subsidiaries or any
Commonly Controlled Entity contributes is either in Reorganization or
Insolvent. All Single Employer Plans maintained by the Company, any of its
Subsidiaries or any Commonly Controlled Entity are in material compliance
with all applicable requirements of law. The sum of the present value of all
accrued benefits vested under all Single Employer Plans maintained by the
Company or any of its Subsidiaries or any Commonly Controlled Entity (based
on assumptions used to fund such Plans) did not, as of December 31, 1999,
exceed the value of the assets of such Plans allocable to such vested
benefits.
3.13 Investment Company Act. The Company is not an Ainvestment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
3.14 Subsidiaries. All of the Subsidiaries of the Company at the
date hereof are set forth on Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Loans shall be used by
the Company for general corporate purposes.
29
SECTION 4 CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The obligation of each Lender to
make an initial Loan hereunder is subject to the satisfaction of the
following conditions precedent:
(a) Legal Opinion. The Administrative Agent shall have received,
with a counterpart for each Lender, an opinion of Xxxxxxxx X. Xxxxx, Vice
President, Law, Deputy General Counsel and Assistant Secretary of the
Company, dated the Closing Date and addressed to the Administrative Agent and
the Lenders, substantially in the form of Exhibit F. Such opinion shall also
cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent or any Lender shall reasonably require.
(b) Officer's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, an Officer's Certificate of the
Company dated the Closing Date, substantially in the form of Exhibit G, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent and its counsel, executed by the President or Vice
President and the Secretary or Assistant Secretary of the Company.
(c) Secretary's Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Secretary
or Assistant Secretary of the Company dated the Closing Date, substantially
in the form of Exhibit H, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel.
(d) Compliance. Each of the Lenders shall have determined that the
making of such Loan and the use of the proceeds thereof will not violate any
Regulation of the Board of Governors of the Federal Reserve System, and each
Lender shall have received such documents and information (including without
limitation, a duly completed and signed Form U-1) as such Lenders shall
require to make such determination.
(e) Existing Credit Agreement. All interest and fees under the
Existing Credit Agreement through the Closing Date shall have been paid.
(f) Fees. All fees payable to the Administrative Agent or any
Lender on the Closing Date shall have been paid.
(g) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders and their counsel.
4.2 Conditions to All Loans. The obligation of each Lender to make
any Loan (including the initial Loan to be made by it hereunder) to be made
by it hereunder is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
30
(a) Representations and Warranties. The representations and
warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection herewith (except the representation and warranty set
forth in subsection 3.2 and except, in the case of a Refunding Borrowing, the
representations and warranties set forth in subsections 3.2, 3.5, 3.6, 3.7,
3.8, 3.9, 3.10, 3.12 and 3.14) shall be correct on and as of the Borrowing
Date as if made on and as of such date.
(b) No Default or Event of Default. In the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing on the
date of such Loan after giving effect to the Loans to be made on such date
and in the case of any other Loan no Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loan to
be made on such Borrowing Date.
(c) Additional Conditions to Competitive Loans. If such Loan is
made pursuant to subsection 2.2, all conditions set forth in such subsection
shall have been satisfied.
Each borrowing by the Company hereunder shall constitute a
representation and warranty by the Company as of the date of such borrowing
that the conditions in clauses (a), (b) and (c) of this subsection have been
satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments
remain in effect, any Loan remains outstanding and unpaid or any other amount
is owing to any Lender or the Administrative Agent hereunder, the Company
shall and in the case of the agreements set forth in subsections 5.3, 5.4,
5.5 and 5.6 cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of such
year and the related consolidated statements of income and stockholders'
equity and cash flow for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going concern"
or like qualification or exception, or qualification arising out of the scope
of the audit, by independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated balance sheet of the Company
and its consolidated Subsidiaries as at the end of each such quarter and the
related unaudited consolidated statements of income and cash flow of the
Company and its consolidated Subsidiaries for such quarterly period setting
forth in each case in comparative form the figures for the comparable quarter
of the previous year in the case of the consolidated statements of income and
the end of the immediately preceding fiscal year in the case of the
consolidated balance sheet, certified
31
by the chief financial officer of the Company (subject to normal year-end
audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
5.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and (b) above, a certificate of a
Responsible Officer (i) stating that, to the best of such officer's
knowledge, the Company during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition, contained
in this Agreement and in any Note to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, and (ii) showing in
detail the calculations supporting such statement in respect of subsections
6.3 and 6.4;
(c) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its stockholders,
and within five days after the same are filed, copies of all financial
statements and reports which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or analogous Governmental
Authority; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all
its obligations of whatever nature, except when the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided
on the books of the Company or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as
otherwise permitted pursuant to subsection 6.2; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the
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aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the Company
and its Subsidiaries taken as a whole.
5.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition; maintain
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired, and to
discuss the business, operations, properties and financial and other
conditions of the Company and its Subsidiaries with officers and employees of
the Company and its Subsidiaries and with its independent certified public
accountants.
5.7 Notices. Promptly give notice to the Administrative Agent and
each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any default or event of default under any material
Contractual Obligation of the Company or any of its Subsidiaries;
(c) of any litigation, investigation or proceeding which may exist
at any time between the Company or any of its Subsidiaries and any
Governmental Authority, which in either case, if not cured or if adversely
determined, as the case may be, would have a material adverse effect on the
business, operations, property or financial or other condition of the Company
and its Subsidiaries taken as a whole;
(d) of any litigation or proceeding affecting the Company or any of
its Subsidiaries in which (i) the amount involved is $50,000,000 or more and
not covered by insurance or (ii) injunctive or similar relief is sought which
if adversely determined would have a material adverse effect on the business,
operations, property or financial or other condition of the Company and its
Subsidiaries taken as a whole;
(e) of the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, or (ii) the institution of proceedings or the taking or expected taking
of any other action by PBGC or the Company or any Commonly Controlled Entity
to terminate or withdraw or partially withdraw from any Plan and, with
respect to a Multiemployer Plan, the Reorganization (as defined in Section
4241 of ERISA) or Insolvency (as defined in Section 4245 of ERISA) of such
Plan and in addition to such notice, deliver to the Administrative Agent and
each Lender whichever of the following may be applicable: (A) a certificate
of a
33
Responsible Officer setting forth details as to such Reportable Event and the
action that the Company or Commonly Controlled Entity proposes to take with
respect thereto, together with a copy of any notice of such Reportable Event
that may be required to be filed with PBGC, or (B) any notice delivered by
PBGC evidencing its intent to institute such proceedings or any notice to
PBGC that such Plan is to be terminated, as the case may be; and
(f) of a material adverse change in the business, operations,
property or financial or other condition of the Company and its Subsidiaries
taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto. For all purposes of clause (e) of this subsection, the Company
shall be deemed to have all knowledge or knowledge of all facts attributable
to the administrator of such Plan.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Loan Commitments
remain in effect, any Loan remains outstanding and unpaid or any other amount
is owing to any Lender or the Administrative Agent hereunder, the Company
shall not, nor in the case of the agreements set forth in subsections 6.1 or
6.2 shall it permit any of its Subsidiaries to, directly or indirectly:
6.1 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired, except:
(a) Liens existing on the date hereof which are described in
Schedule 6.1 hereto;
(b) Liens created in favor of the Administrative Agent, for the
ratable benefit of the Lenders;
(c) Liens for taxes or assessments either (i) not yet delinquent or
(ii) the validity of which is being contested in good faith and as to which
any reserves required by GAAP have been set aside;
(d) deposits or pledges to secure the payment of workmen's
compensation, unemployment insurance or other social security benefits or
obligations, or to secure the performance of bids, trade contracts, leases,
public or statutory obligations, surety or appeal bonds or other obligations
of a like nature incurred in the ordinary course of business;
(e) materialmen's, mechanics', workmen's, repairmen's, employees',
or other like Liens either (i) arising in the ordinary course of business and
securing obligations not more than 90 days overdue or (ii) being contested in
good faith and as to which any reserves required by GAAP have been set aside
or as to which adequate bonds have been obtained;
34
(f) minor defects, easements, exceptions, reservations and
irregularities in the title to real property which do not, in the aggregate,
materially impair the use of such property for the purposes for which it is
or may reasonably be expected to be held;
(g) Liens on assets, each of which Liens (i) existed on such assets
before the time of their acquisition by the Company or such Subsidiary, or
(ii) existed on such assets of any Subsidiary before the time it became a
Subsidiary, or (iii) was created solely for the purpose of securing, and was
created substantially contemporaneously with the incurring of, Indebtedness
representing, or incurred to finance, the cost of such assets; provided that,
with respect to Liens referred to in clause (iii), (A) such Liens shall at
all times be confined to the assets so acquired and improvements,
alterations, replacements and modifications thereto and (B) the principal
amount of the Indebtedness secured by such Liens shall in no case exceed 100%
of the lesser of the cost or the fair market value of the assets subject
thereto at the time of acquisition thereof, and provided, further that with
respect to each Lien referred to in this paragraph (g), any extension,
renewal or replacement thereof shall be permitted only to the extent that the
principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement; and
(h) Liens not otherwise permitted by this subsection 6.1 so long as
neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject thereto exceeds (as to
the Company and all Subsidiaries) 10% of Consolidated Net Worth at any time.
6.2 Limitation on Mergers and Sales of Assets. (a) Consolidate or
merge with or into, or sell, convey, transfer or lease in a single
transaction or in a series of related transactions any substantial part of
the assets of the Company and its consolidated Subsidiaries taken as a whole
to, any other Person, except (i) any such consolidation, merger, sale,
conveyance, transfer or lease when the only parties to such transaction or
series of transactions are one of its Subsidiaries and one or more of its
other Subsidiaries, (ii) any such sale, conveyance, transfer or lease to the
Company by one or more of its Subsidiaries and (iii) the merger or
consolidation of the Company with another corporation, provided that the
Company is the surviving corporation and that, after giving effect to such
consolidation or merger, no Default or Event of Default has occurred and is
continuing.
(b) Convey, transfer or lease, or sell and lease-back, any
significant fixed asset used or useable in its business or the shares of the
capital stock of any Subsidiary, except (i) to the Company by any of its
Subsidiaries or to any of the Company's Subsidiaries by one or more of its
other Subsidiaries, (ii) for a sale or conveyance of such a fixed asset in
connection with the replacement thereof or in the ordinary course of business
or (iii) if such conveyance, transfer, lease or sale is for fair value as
determined by the Board of Directors or any executive officer of the Company
and not materially adverse to the Lenders.
6.3 Maintenance of Ratio of Consolidated Total Indebtedness to
Consolidated Total Capitalization. Permit the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization to exceed 0.60 to 1 at any
time.
35
6.4 Maintenance of Ratio of Annualized Consolidated Cash Flow.
Permit the ratio of (a) Annualized Consolidated Cash Flow as at the end of
any fiscal quarter of the Company to (b) Annualized Consolidated Interest
Expense as at the end of such fiscal quarter, to be less than 2.0 to 1.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay (i) any principal of any Loan when
due in accordance with the terms thereof or (ii) any interest on any Loan, or
any other amount payable hereunder, within five days after any such interest
or other amount becomes due in accordance with the terms thereof or hereof;
or
(b) Any representation or warranty made or deemed made by the
Company herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of
any agreement contained in Section 6; or
(d) The Company shall default in any material respect in the
observance or performance of any other agreement contained in this Agreement,
and such default shall continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness for more than
$2,000,000 (other than the Loans) or in the payment of any Guarantee
Obligation in excess of $2,000,000 beyond the period of grace (not to exceed
30 days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, if such default or other event or condition causes,
or permits the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(f)(i) The Company or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its
36
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or
the Company or any of its Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against the
Company or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Company or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Company or any of
its Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Company or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g)(i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, and, in the case of a Reportable
Event, the continuance of such Reportable Event unremedied for ten days after
notice of such Reportable Event pursuant to Section 4043(a), (c) or (d) of
ERISA is given and, in the case of the institution of proceedings, the
continuance of such proceedings for ten days after commencement thereof, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) any of the Company, any of its Subsidiaries or any commonly controlled
entity shall incur material liability relating to the withdrawal from any
Multiemployer Plan or the termination of any Single Employer Plan or (vi) any
other event or condition shall occur or exist, with respect to a Single
Employer Plan; provided, that in the case of each of clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities that in the aggregate would be material
in relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability (to
the extent not paid or covered by insurance) of $50,000,000 or more and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 90 days from the entry thereof; or
37
(i)(i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than members of the Xxxxxxxx family or any trusts for
their benefit, shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
shares of Capital Stock representing more than 35% of the total voting power
of the Company, or (ii) the board of directors of the Company shall cease to
consist of a majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically the
Loan Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
and any Note shall immediately become due and payable, and (B) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative
Agent shall, by notice to the Company declare the Loan Commitments to be
terminated forthwith, whereupon the Loan Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice of default to the Company, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and any Note to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. The Lenders from time to time party to this Credit
Agreement, whether as original signatories or as Purchasing Lenders pursuant
to subsection 9.6, hereby irrevocably designate and appoint The Chase
Manhattan Bank as the Administrative Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes The Chase Manhattan
Bank, as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
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8.3 Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or any Note or for any failure of the Company to perform its obligations
hereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement
unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and any Note in
accordance with a request of the Required Lenders, or all the Lenders where
unanimity is required pursuant to subsection 9.1, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders, or
all the Lenders where unanimity is required pursuant to subsection 9.1;
provided that unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests
of the Lenders.
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8.6 Non-Reliance on Administrative Agent, Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent that it has, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Company and made
its own decision to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance
upon the Administrative 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 analysis, appraisals and decisions in taking or not
taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Company. Except
for notices, reports and other documents expressly required to be furnished
to the Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Company
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Company and without limiting the obligation of the Company to do so),
ratably according to the respective amounts of their original Loan
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action
taken or omitted by the Administrative Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as though
the Administrative Agent were not the Administrative Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
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8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent shall be approved by
the Company, whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the
part of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
subsection 8.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
8.10 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of the
Required Lenders, the Administrative Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto for
the purpose of adding any provisions to this Agreement or any Note or
changing in any manner the rights of the Lenders or of the Company hereunder
or thereunder or waiving, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the requirements of this
Agreement or any Note or any Default or Event of Default and its
consequences; provided, however, that (i) such amendments, supplements or
modifications may only be made pursuant to this subsection 9.1 and (ii) no
such waiver and no such amendment, supplement or modification shall (a)
extend the maturity of any Loan (except in connection with an extension of
the Termination Date in accordance with subsection 2.16), or reduce the rate
or extend the time of payment of interest thereon, or reduce any fee payable
to the Lenders hereunder, or reduce the principal amount of any Loan, or
increase the amount or extend the expiration date of any Lender's Loan
Commitment or amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Company of any of its rights and
obligations under this Agreement, in each case without the written consent of
each Lender affected thereby, (b) amend, modify or waive any provision of
Section 8 without the written consent of the then Administrative Agent or (c)
amend subsection 2.16 without the written consent of all the Lenders. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Company, the
Lenders, the Administrative Agent and all future holders of the Loans. In
the case of any waiver, the Company, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under any
Notes, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or
other default or Event of Default, or impair any right consequent thereon.
41
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, including by
telecopy, and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or when deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Company and the Administrative Agent,
and as set forth in Schedule 9.2 in the case of the other parties hereto, or
to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Loans:
The Company: Dow Xxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telecopy: 000-000-0000
The Administrative Agent: The Chase Manhattan Bank
Agent Bank Services Group
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
with copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 212-270-1204
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.1(d), 2.2, 2.5 and 2.7 shall
not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans
hereunder.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this
Agreement and any Notes and any other documents prepared
42
in connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights
under this Agreement, any Notes and any such other documents, including,
without limitation, reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders, (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, any Notes and any
such other documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "Indemnitee") harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever arising out of the execution, delivery,
enforcement, performance and administration of this Agreement, or the use by
the Company of the proceeds of the Loans (including, without limitation, any
such use that would result in a violation of Regulation U or X of the Board
of Governors of the Federal Reserve System) (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the Company
shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. The agreements in this subsection 9.5 shall survive repayment of
the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Lenders. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Lenders, the Administrative Agent, all future holders of the Loans, and
their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Loan Commitment of such Lender or any other
interest of such Lender hereunder or under any Note. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and any Note and the Company and
the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and any Note. In no event shall any Participant under any such
participation 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 Company therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the
43
final maturity of the Loans, in each case to the extent subject to such
participation. The Company agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest
in amounts owing under this Agreement to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 9.7(a) as fully as if it were a
Lender hereunder. The Company also agrees that each Participant shall be
entitled to the benefits of subsections 2.12, 2.13, 2.14, 2.15 and 9.5 with
respect to its participation in the Loan Commitments and the Loans
outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than the
transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any time
assign to one or more banks or other entities ("Competitive Loan Assignees")
any Competitive Loan owing to such Lender and any Note held by such Lender
evidencing such Competitive Loan, pursuant to a Competitive Loan Assignment
executed by the assignor Lender and the Competitive Loan Assignee. Upon such
execution, from and after the date of such Competitive Loan Assignment, the
Competitive Loan Assignee shall, to the extent of the assignment provided for
in such Competitive Loan Assignment, be deemed to have the same rights and
benefits of payment and enforcement with respect to such Competitive Loan and
any such Note and the same rights of setoff and obligation to share pursuant
to subsection 9.7 as it would have had if it were a Lender hereunder;
provided, that unless such Competitive Loan Assignment shall otherwise
specify and a copy of such Competitive Loan Assignment shall have been
delivered to the Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(f), the assignor thereunder shall
act as collection agent for the Competitive Loan Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Company which
are allocable to the assigned Competitive Loan and Note, if any, directly to
such assignor without any further liability to such Competitive Loan
Assignee. A Competitive Loan Assignee under a Competitive Loan Assignment
shall not, by virtue of such Competitive Loan Assignment, become a party to
this Agreement or have any rights to consent to or refrain from consenting to
any amendment, waiver or other modification of any provision of this
Agreement or any related document; provided, no Competitive Loan Assignee
shall be entitled to receive any greater amount than the Lender would have
been entitled to receive in respect of the amount of the Competitive Loan
Assignment by such Lender to such Competitive Loan Assignee had no such
assignment occurred; provided, further, that (x) the assignor under such
Competitive Loan Assignment and such Competitive Loan Assignee may, in their
discretion, agree between themselves upon the manner in which such assignor
will exercise its rights under this Agreement and any related document, and
(y) if a copy of such Competitive Loan Assignment shall have been delivered
to the Administrative Agent for its acceptance and recording in the Register
in accordance with subsection 9.6(f), neither the principal amount of, the
interest rate on, nor the maturity date of any Competitive Loan and Note, if
any, assigned to the Competitive Loan Assignee thereunder will be modified
without the written consent of such Competitive Loan Assignee. If a
Competitive Loan Assignee has caused a Competitive Loan Assignment to be
44
recorded in the Register in accordance with subsection 9.6(f), such
Competitive Loan Assignee may thereafter, in the ordinary course of its
business and in accordance with applicable law, assign such Competitive Loan
and Note, if any, to any Lender, to any affiliate or subsidiary of such
Competitive Loan Assignee or to any other financial institution that has
total assets in excess of $1,000,000,000 and that in the ordinary course of
its business extends credit of the same type as such Competitive Loan, and
the foregoing provisions of this paragraph (c) shall apply, mutatis mutandis,
to any such assignment by a Competitive Loan Assignee. Except in accordance
with the preceding sentence, Competitive Loans and any related Notes may not
be further assigned by a Competitive Loan Assignee, subject to any legal or
regulatory requirement that the Competitive Loan Assignee's assets must
remain under its control.
(d) Any Lender may, in accordance with applicable law, at any time
and from time to time sell to any other Lender or any affiliate thereof all
or any part of such transferor Lender's rights and obligations under this
Agreement (other than its rights with respect to Competitive Loans,
assignment of which shall be governed by paragraph (c) above) pursuant to an
Assignment and Acceptance, executed by such purchasing Lender and such
transferor Lender and delivered to the Administrative Agent for its
acceptance and recording in the Register. In addition, with the consent of
the Company and the Administrative Agent (which in each case shall not be
unreasonably withheld), any Lender may, in accordance with applicable law, at
any time and from time to time sell to one or more additional banks,
financial institutions or other entities that are not then Lenders or
affiliates thereof (together with purchasing Lenders pursuant to the
preceding sentence (including, without limitation, any affiliate through
which Loans were not previously booked), each a "Purchasing Lender"), all or
any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, executed by such Purchasing Lender, such
transferor Lender, the Company and the Administrative Agent, and delivered to
the Administrative Agent for its acceptance and recording in the Register,
provided that no such assignment to a Purchasing Lender (other than any
Lender or any affiliate of any Lender) shall be in an aggregate principal
amount of less than $5,000,000 (other than in the case of an assignment of
all of a Lender's interests under this Agreement), unless otherwise agreed by
the Company and the Administrative Agent. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Loan Commitment as set forth therein, and (y) the transferor
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of a transferor
Lender's rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto). Notwithstanding any provision of this
subsection 9.6, the consent of the Company shall not be required for any
assignment that occurs when an Event of Default pursuant to subsection 7(f)
shall have occurred and be continuing with respect to the Company. Such
Assignment and Acceptance shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a portion of
the rights and obligations of such transferor Lender under this Agreement.
(e) The Administrative Agent shall, on behalf of the Company,
maintain at its address referred to in subsection 9.2 a copy of each
Competitive Loan Assignment and each
45
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of (i) the names and addresses of the Lenders and the Loan
Commitment of, and principal amount and stated interest of the Loans owing
to, each Lender from time to time, and (ii) with respect to each Competitive
Loan Assignment delivered to the Administrative Agent, the name and address
of the Competitive Loan Assignee and the principal amount and stated interest
of each Competitive Loan owing to such Competitive Loan Assignee. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as the owner of the Loan
and any Notes evidencing the Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the designated Assignee. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(f) Upon its receipt of a Competitive Loan Assignment executed by an
assignor Lender and a Competitive Loan Assignee, together with payment from
the assignor or assignee Lender to the Administrative Agent of a registration
and processing fee of $2,000.00, the Administrative Agent shall promptly
accept such Competitive Loan Assignment, record the information contained
therein in the Register and give notice of such acceptance and recordation to
the assignor Lender, the Competitive Loan Assignee and the Company. Upon its
receipt of an Assignment and Acceptance executed by a transferor Lender and a
Purchasing Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate thereof, by the Company and the Administrative Agent)
together with payment from the assignor or assignee Lender to the
Administrative Agent of a registration and processing fee of $4,000.00, the
Administrative Agent shall promptly accept such Assignment and Acceptance and
promptly record the information contained therein and the effective date
determined pursuant thereto in the Register.
(g) The Company authorizes each Lender to disclose to any
Participant, Competitive Loan Assignee or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Company and its
affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Company in connection with such Lender's credit
evaluation of the Company and its affiliates prior to becoming a party to
this Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 9.6 concerning assignments
of Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including
any pledge or assignment by a Lender of any Loan or Note to any Federal
Reserve Bank in accordance with applicable law.
46
(i) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (h) above.
9.7 Adjustments; Set-off. (a) If any Lender or Transferee (a
"benefitted Lender") shall at any time receive any payment of all or part of
its Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (f) of Section 7, or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of such other Lender's
Loans, or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender
to share the excess payment or benefits of such collateral or proceeds
ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest.
The Company agrees that each Lender so purchasing a portion of another
Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the
Company, any such notice being expressly waived by the Company to the extent
permitted by applicable law, upon the occurrence and continuance of an Event
of Default to set-off and apply against any indebtedness, whether matured or
unmatured, of the Company to such Lender, any amount owing from such Lender
to the Company, at or at any time after the happening of any of the above
mentioned events, and the aforesaid right of set-off may be exercised by such
Lender against the Company or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Company, or against anyone else
claiming through or against the Company or such trustee in bankruptcy, debtor
in possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making,
filing or issuance, or service upon such Lender of, or of notice of, any such
petition; assignment for the benefit of creditors; appointment or application
for the appointment of a receiver; or issuance of execution, subpoena, order
or warrant. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
47
9.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and any Notes represent the
agreement of the Company, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in any such Notes.
9.11 Governing Law. This Agreement and the rights and obligations
of the parties under this Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
9.12 Submission To Jurisdiction; Waivers. (A) The Company hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to the Company at its address set forth in subsection 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
(B) The Company and the Administrative Agent and each Lender hereby
irrevocably and unconditionally waive trial by jury in any legal action or
proceeding relating to this Agreement and for any counterclaim therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President/Finance
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch,
as Documentation Agent and as a Lender
By: /s/ Kheil X. XxXxxxxx
Name: Kheil X. XxXxxxxx
Title: Associate Director
By: /s/ Pascal Kabemba
Name: Pascal Kabemba
Title: Associate Director
FLEET NATIONAL BANK,
as Syndication Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Director
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Signature
BANCA DI ROMA
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
BANK OF HAWAII
By: /s/ Xxxx Xxx
Name: Xxxx Xxx
Title: Vice President
DEUTSCHE BANK AG, New York Branch
and/or Cayman Islands Branch
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
HSBC BANK USA
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
LLOYDS TSB BANK PLC
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Director
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
Acquisition Finance
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx F.T. Xxxxxxx
Name: Xxxxx F.T. Monhart
Title: Senior Vice President
SCHEDULE 1.1 to
Amended and Restated Credit Agreement
Lender Loan Commitment
The Chase Manhattan Bank $44,000,000
Fleet National Bank $42,000,000
Lloyds TSB Bank plc $42,000,000
Westdeutsche Landesbank Girozentrale,
New York Branch $42,000,000
Banca Di Roma $30,000,000
Banca Nazionale Del Lavoro S.p.A.,
New York Branch $30,000,000
Bank of Hawaii $30,000,000
The Bank of New York $30,000,000
Deutsche Bank AG, New York Branch
and/or Cayman Islands Branch $30,000,000
HSBC Bank USA $30,000,000
The Northern Trust Company $30,000,000
Banca Commerciale Italiana,
New York Branch $20,000,000
Total $400,000,000
SCHEDULE 3.14
SUBSIDIARIES OF THE COMPANY
Name of Subsidiary
DJBI, LLC
Dow Xxxxx & Company (Australia) Pty Limited
Dow Xxxxx & Company (Singapore) Pte Limited
Dow Xxxxx AER Company, Inc.
Economic Research Company, Inc.
Dow Xxxxx XX Services, Inc.
Dow Xxxxx Broadcasting (Asia), Inc.
Dow Xxxxx Broadcasting (Europe), Inc.
Dow Xxxxx Broadcasting (USA), Inc.
Dow Xxxxx Canada, Inc.
Dow Xxxxx Consulting (Shanghai) Limited
Dow Xxxxx Distribution Co. (Asia), Inc.
Dow Xxxxx Financial Publishing Corp.
Dow Xxxxx Information Publishing, Inc.
Dow Xxxxx Information Services International (HK) Ltd.
Dow Xxxxx International GmbH
Dow Xxxxx International Ltd.
Dow Xxxxx International Marketing Services
Dow Xxxxx (Japan) X.X.
Xxx Xxxxx, X.X.
Dow Xxxxx Newsprint Company, Inc.
Dow Xxxxx Newswires Holdings, Inc.
Dow Xxxxx Printing Company (Asia), Inc.
Dow Xxxxx Publishing Company (Asia), Inc. (90% owned)
Dow Xxxxx Publishing Company (Europe), Inc.
Dow Xxxxx Southern Holding Company, Inc.
Dow Xxxxx Ventures V, Inc.
Dow Xxxxx Ventures VI., Inc.
Dow Xxxxx Cash Management, Inc.
Xxxxxxx Newspapers, Inc.
Essex County Newspapers, Inc.
News-Sun, Inc.
ONI Press, Inc.
Research and Marketing Solutions, Inc.
The Inquirer & Mirror, Inc.
Portuguese-American Publications, Inc.
Seacoast Newspapers, Inc.
Federal Filings, Incorporated
IDD LP Holdings, Inc.
National Delivery Service, Inc.
Review Publishing Company Limited
The China Phone Book Co. Ltd.
The Wall Street Journal Europe S.P.R.L. (51% owned)
SCHEDULE 6.1
EXISTING LIENS
None.
SCHEDULE 9.2 to
Amended and Restated Credit Agreement
Names and Addresses of Lenders
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 212-270-7340
Banca Commerciale Italiana,
New York Branch
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: 000-000-0000
Banca Di Roma
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: 000-000-0000
Banca Nazionale Del Lavoro S.p.A.,
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
Bank of Hawaii
000 Xxxxxxxx Xxxxxx, 00xx Xx.
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx Xxx
Telecopy: 000-000-0000
Deutsche Bank AG,
New York Branch and/or
Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxxx
Telecopy: 000-000-0000
Fleet National Bank
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
HSBC Bank USA
000 Xxxxxxxx, 0xx Xx.
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
Lloyds TSB Bank plc
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: 000-000-0000
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Westdeutsche Landesbank Girozentrale,
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
EXHIBIT A
FORM OF BORROWING NOTICE FOR REVOLVING CREDIT LOANS
Date:
The Chase Manhattan Bank, as Administrative Agent under the
Credit Agreement referred to below
Gentlemen:
Pursuant to subsection 2.1 of the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"), the
Company hereby requests that the following Revolving Credit Loans be made on
[date] as follows:
(1). Total Amount of Revolving Credit Loans $_______________
(2). Amount of (1) to be allocated to
Eurodollar Loans $_______________
(3). Amount of (1) to be allocated to
Alternate Base Rate Loans $_______________
(4). Interest Periods and amounts to be allocated
thereto in respect of Eurodollar Loans
(amounts must total (2)):
(i) one month $_______________
(ii) two months $_______________
(iii) three months $_______________
(iv) six months $_______________
Total Eurodollar Loans $_______________
NOTE: EACH AMOUNT APPEARING IN EACH LINE ABOVE MUST BE AT LEAST EQUAL
TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000.
2
The Company hereby certifies that the conditions set forth in Section
4.2 of the Credit Agreement have been satisfied.
Terms defined in the Credit Agreement shall have the same meanings
when used herein.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By: _______________________
Name:
Title:
EXHIBIT B
FORM OF COMPETITIVE LOAN REQUEST
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Competitive Loan Request
pursuant to subsection 2.2 of the Credit Agreement requesting quotes for the
following Competitive Loans:
Aggregate Principal Amount $________ $________ $________
Competitive Loan Date ________ ________ ________
[Interest Period]* _____________________
Maturity Date** _____________________
Interest Payment Dates _____________________
Very truly yours,
DOW XXXXX & COMPANY, INC.
By:__________________________
Name:
Title:
Note: Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission. In any
case, a Competitive Loan Request shall contain the information specified in
the second paragraph of this form.
* Insert only in an Index Rate Competitive Loan Request.
2
** In an Index Rate Competitive Loan Request, insert last day of Interest
Period.
EXHIBIT C
FORM OF COMPETITIVE LOAN OFFER
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned Lender offers to make Competitive Loans thereunder in the
following amounts with the following maturity dates:
Competitive Loan Date: _________, ____
Aggregate Maximum Amount: $___________
Maturity Date 1:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Maturity Date 2:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
2
Maturity Date 3:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Very truly yours,
[NAME OF OFFERING LENDER]
By:_______________________ Name:
Title:
Telephone No.:
Fax No.:
* In the case of Index Rate Competitive Loans, insert margin bid. In
the case of Absolute Rate Competitive Loans, insert fixed rate bid.
EXHIBIT D
FORM OF COMPETITIVE LOAN CONFIRMATION
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the
undersigned accepts and confirms the offers by Competitive Loan Lender(s) to
make Competitive Loans to the undersigned on __________, ______ [Competitive
Loan Date] under said subsection 2.2 in the (respective) amount(s) set forth
on the attached list of Competitive Loans offered.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By:_______________________
Name:
Title:
[Company to attach Competitive Loan offer list prepared by
Administrative Agent with accepted amount entered by the Company to right of
each Competitive Loan offer].
EXHIBIT E
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Dow Xxxxx &
Company, Inc., a Delaware corporation (the "Company"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), The Chase Manhattan Bank, as Administrative Agent,
Westdeutsche Landesbank Girozentrale, as Documentation Agent, and Fleet
National Bank, as Syndication Agent. Capitalized terms used herein that are
not defined herein shall have the meanings ascribed to them in the Credit
Agreement. ______________________ (the "Non-U.S. Lender") is providing this
certificate pursuant to subsection 2.12(d) of the Credit Agreement. The Non-
U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Notes in respect of which it is
providing this certificate;
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements; and
(c) the Non-U.S. Lender is acquiring an interest in the Loans or
Notes for its own account, and the Non-U.S. Lender will not hold such an
interest, directly or indirectly, for or on behalf of, or as nominee for, any
bank.
3. The Non-U.S. Lender meets all of the requirements under Code
Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of taxes on interest payments made to it under the Credit
Agreement, including without limitation that it is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code); and
4. The Non-U.S. Lender shall promptly notify the Company and the
Administrative Agent if any of the representations and warranties made herein
are no longer true and correct.
2
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By: ___________________________
Name:
Title:
Date: ____________________
EXHIBIT F
FORM OF OPINION OF XXXXXXXX X. XXXXX
_____________________, 2000
The Chase Manhattan Bank,
as Administrative Agent
under the Agreement, as
hereinafter defined,
Westdeutsche Landesbank Girozentrale,
as Documentation Agent under
the Agreement,
Fleet National Bank, as Syndication
Agent under the Agreement
and
Each of the Lenders parties to the
Agreement
Ladies and Gentlemen:
In my capacity as Deputy General Counsel, I have acted as counsel for
Dow Xxxxx & Company, Inc., a Delaware corporation (the "Company"), in
connection with the execution and delivery of the 364-Day Amended and
Restated Credit Agreement, dated as of June 27, 2000, among Dow Xxxxx &
Company, Inc. (the "Company"), the Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Westdeutsche Landesbank
Girozentrale, as Documentation Agent, and Fleet National Bank, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified, the
"Agreement").
This opinion is delivered to you pursuant to Section 4 of the
Agreement. Terms used herein which are defined in the Agreement shall have
the respective meanings set forth in the Agreement, unless otherwise defined
herein.
In connection with this opinion, I have examined executed copies of
the Agreement and such corporate documents and records of the Company and its
Subsidiaries, certificates of public officials and officers of the Company
and its Subsidiaries, and such other documents, as I have deemed necessary or
appropriate for the purposes of this opinion. In stating my opinion, I have
assumed the genuineness of all signatures of, and the authority of, persons
signing the Agreement on behalf of parties thereto other than the Company,
the authenticity of all documents submitted to me as originals and the
conformity to authentic original documents of all documents submitted to me
as certified, conformed or photostatic copies.
2
DOW XXXXX
Based upon the foregoing, I am of the opinion that:
1. Each of the Company and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation, (b) has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
under lease and to conduct the business in which it is currently engaged and
(c) to the best of my knowledge, is duly qualified as a foreign corporation
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification and where the failure to be so qualified would have a material
adverse effect on the Company and its Subsidiaries taken as a whole.
2. The Company has the corporate power and authority to make,
deliver and perform the Agreement and to borrow thereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of the Agreement and to authorize the execution, delivery and
performance of the Agreement and any promissory notes that may be issued
after the date hereof to evidence the loans consistent with the terms of the
Agreement. No consent or authorization of, filing with, or other act by or
in respect of any Governmental Authority, is required to be obtained by the
Company in connection with the borrowings thereunder or with the execution,
delivery, performance, validity or enforceability of the Agreement.
3. The Agreement has been duly executed and delivered on behalf of
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). No opinion is
expressed as to the availability of the remedy of specific performance.
4. The execution, delivery and performance of the Agreement by the
Company and the use of the proceeds of the borrowings thereunder as provided
therein, will not violate any provision of any existing law or regulation
applicable to the Company, or, to the best of my knowledge, of any order,
judgment, award or decree of any court, arbitrator or governmental authority
binding upon or applicable to the Company, or of the Certificate of
Incorporation or By-Laws of the Company, or, to the best of my knowledge, of
any securities issued by the Company, or, to the best of my knowledge, of any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking by which the Company or any of its Subsidiaries or any of their
respective assets may be bound, and, to the best of my knowledge, will not
result in or require the creation or imposition of any Lien on any of its or
their respective properties, assets or revenues pursuant to the provisions of
any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking.
3
5. To the best of my knowledge, no litigation, investigation or
proceeding of or before any court, arbitrator or governmental authority is
pending or threatened by or against the Company or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with
respect to the Agreement or any of the transactions contemplated thereby, or
(b) which, if adversely determined, would have a material adverse effect on
the business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or a Aholding company,@ or a Asubsidiary
company@ of a Aholding company@ within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7. Assuming that the Company will comply with the provisions of the
Credit Agreement relating to the use of proceeds, the making of the Loans
under the Credit Agreement will not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System.
The opinions expressed herein are solely for the benefit of the
Administrative Agent, the Documentation Agent, the Syndication Agent and the
Lenders in connection with the Agreement and may not be relied on in any
manner or for any purpose by any other person or entity.
Very truly yours,
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 4 of the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"), the
undersigned hereby certify as follows:
1. The representations and warranties of the Company set forth in
the Credit Agreement or which are contained in any certificate, document or
financial or other statement furnished pursuant to or in connection with the
Credit Agreement are true and correct on and as of the date hereof with the
same effect as if made on the date hereof; and
2. On the date hereof, no Default or Event of Default (both as
defined in the Credit Agreement) has occurred and is continuing under the
Credit Agreement as of the date hereof or after giving effect to any Loans to
be made on the date hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his
name.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Date:
EXHIBIT H
FORM OF CERTIFICATE OF THE
ASSISTANT SECRETARY OF THE COMPANY
Pursuant to Section 4 of the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000, among Dow Xxxxx & Company, Inc. (the
"Company"), the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Westdeutsche Landesbank Girozentrale, as Documentation
Agent, and Fleet National Bank, as Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit Agreement"), the
undersigned Secretary of the Company hereby certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on February
21, 1996, and such resolutions have not in any way been rescinded or modified
and have been in full force and effect since their adoption to and including
the date hereof and are now in full force and effect; and such resolutions
are the only corporate proceedings of the Company now in force relating to or
affecting the matters referred to therein.
2. Attached hereto as Annex II is a true and complete copy of the
By-laws of the Company as in effect at all times since May 17, 1989, to and
including the date hereof.
3. Attached hereto as Annex III is a true and complete copy of the
Restated Certificate of Incorporation of the Company, as amended, as in
effect at all times since April 25, 1989, to and including the date hereof,
and no action has been taken to amend, repeal, modify or revoke such
certificate.
4. The following persons are now duly elected and qualified officers
of the Company, holding the offices indicated next to their respective names
below, and such officers have held such offices with the Company at all times
since the respective dates set forth opposite their names, to and including
the date hereof, and the signatures appearing opposite their respective names
below are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Company
the Credit Agreement, any Notes of the Company to be issued pursuant thereto
and any certificate or other document to be delivered by the company pursuant
to the Credit Agreement and to act as Responsible Officers on behalf of the
Company under the Credit Agreement:
Name Office Signature Month & Year
of Election
Xxxxxx X. Xxxxxx Executive Vice April 2000
President and Chief
Financial Officer
2
Xxxxxxx Xxxxxxxxxxxx Vice President/Finance April 2000
Xxxxxx X. XxXxxxx Treasurer and Assistant April 2000
Secretary
Xxxxxx X. Xxxxxxxx Assistant Treasurer April 2000
IN WITNESS WHEREOF, the undersigned has hereunto set her name and
affixed the corporate seal of the Company.
Dated: June 27, 2000
Xxxxxxxx X. Xxxxx
Vice President/ Law, Deputy
General Counsel and Assistant Secretary
(CORPORATE SEAL)
3
I, Xxxxxxx Xxxxxxxxxxxx, Vice President/Finance of the Company, hereby
certify that Xxxxxxxx X. Xxxxx, whose genuine signature appears above, is,
and has been at all times since April 19, 2000, a duly elected, qualified and
acting Assistant Secretary of the Company.
Dated: June 27, 2000
Xxxxxxx Xxxxxxxxxxxx
Vice President/Finance
EXHIBIT I
FORM OF
COMPETITIVE LOAN ASSIGNMENT
Reference is made to the 364-Day Credit Agreement, dated as of June
27, 2000 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among Dow Xxxxx & Company, Inc. (the "Company"), the
Lenders named therein, The Chase Manhattan Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), Westdeutsche
Landesbank Girozentrale, as Documentation Agent, and Fleet National Bank, as
Syndication Agent. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and
the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Effective Date (as defined below), the Competitive Loan (the "Assigned
Loan") and any Note evidencing such Competitive Loan described in Schedule 1
hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, any of its
Subsidiaries or any other obligor or the performance or observance by the
Company, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, any Notes or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Loan and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached
Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in any Note evidencing the Assigned Loan,
requests that the Administrative Agent exchange the attached Notes for a new
Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Competitive Loan Assignment; (b) confirms that
it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1 thereof and such
other documents and information as it has deemed appropriate to
2
make its own credit analysis and decision to enter into this Competitive Loan
Assignment; (c) agrees that it will, independently and without reliance upon
the Assignor, the Administrative Agent or any 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 permitted by
the Credit Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, any Notes or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the terms and
conditions contained in the Credit Agreement applicable to it (including,
without limitation, the terms and conditions contained in subsections 9.6 and
9.7 thereof) and will perform in accordance with such terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it, including its obligations pursuant to subsection 2.12 of the
Credit Agreement.
4. The effective date of this Competitive Loan Assignment shall be
the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Competitive Loan
Assignment, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. [Option 1: Upon such acceptance and recording, from and after the
Effective Date, the Assignor shall act as collection agent for the Assignee
hereunder, and the Administrative Agent shall pay all amounts (including
payments of principal, interest, fees and other amounts) received from the
Company which are allocable to the Assigned Loan and any Note evidencing such
Assigned Loan directly to the Assignor without any further liability to the
Assignee.] [Option 2: Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Loan and any Note evidencing such Assigned Loan
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date.]
6. Any payments to the Competitive Loan Assignee in respect of the
Assigned Loan shall be made in accordance with the payment instructions set
forth on Schedule 2 hereto.
7. This Competitive Loan Assignment shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Competitive
Loan Assignment to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Competitive Loan Assignment
Name of Assignor: _________________________________________
Name of Assignee: _________________________________________
Address for Notices: ________________________________
Contact: ____________________________________________
Title: ______________________________________________
Telephone No: _______________________________________
Fax No: _____________________________________________
Lending Office Address: _____________________________
Contact: ____________________________________________
Title: ______________________________________________
Telephone No: _______________________________________
Fax No: _____________________________________________
Effective Date of Assignment: _____________________________
Competitive Loan Assigned Principal Amount Assigned Maturity Date
------------------------- ------------------------- -------------
$_______________
[Name of Assignee] [Name of Assignor]
By: _____________________________ By: _____________________________
Name: Name:
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: ____________________________________
Name:
Title:
Schedule 2
to Competitive Loan Assignment
Payment Instructions
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 27, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Dow Xxxxx &
Company, Inc. (the "Company"), the Lenders named therein, The Chase Manhattan
Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"), Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to the
Assignor, as of the Effective Date (as defined below), the interest described
in Schedule 1 hereto (the "Assigned Interest") in and to the Assignor's
rights and obligations under the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any Notes or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Company, any of its
Subsidiaries or any other obligor or the performance or observance by the
Company, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, any Notes or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Interest and (i) requests that
the Administrative Agent, upon request by the Assignee, exchange the attached
Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in any Note evidencing the Assigned
Interest, requests that the Administrative Agent exchange the attached Notes
for a new Note or Notes payable to the Assignor, in each case in amounts
which reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1
2
thereof and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment
and Acceptance; (c) agrees that it will, independently and without reliance
upon the Assignor, the Administrative 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 the Credit Agreement, any Notes or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any other
instrument or document furnished pursuant hereto or thereto as are delegated
to the Administrative Agent by the terms thereof, together with such powers
as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender, including its obligations
pursuant to subsection 2.12 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to the
Effective Date and to the Assignee for amounts which have accrued subsequent
to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and
shall be bound by the provisions thereof, and (b) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: _____________________________
Name of Assignee: _____________________________
Effective Date of Assignment: _________________
Principal Amount Assigned Commitment Percentage Assigned 1
$_____________ ______.______%
[Name of Assignee] [Name of Assignor]
By: _____________________________ By: ___________________________
Name Name:
Title: Title:
1 Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of all
Lenders.
2
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as [DOW XXXXX & COMPANY, INC.]
Administrative Agent
By: ____________________________ By: ______________________________
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: ______________________________
Name:
Title:
