EXECUTION COPY
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CREDIT AGREEMENT
Dated as of October 20, 2004
Among
XXXXXXX INCORPORATED,
THE LENDERS PARTY HERETO,
CITIBANK, N.A.,
FLEET NATIONAL BANK and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agents
and
JPMORGAN CHASE BANK,
as Administrative Agent
------------------------
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Bookrunner
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[CS&M Ref. No. 6701-435]
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions..................................................................................... 1
SECTION 1.02. Classification of Loans and Borrowings.......................................................... 13
SECTION 1.03. Terms Generally................................................................................. 13
SECTION 1.04. Accounting Terms; GAAP.......................................................................... 14
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments..................................................................................... 14
SECTION 2.02. Loans and Borrowings............................................................................ 14
SECTION 2.03. Requests for Revolving Borrowings............................................................... 15
SECTION 2.04. Competitive Bid Procedure....................................................................... 16
SECTION 2.05. Funding of Borrowings........................................................................... 18
SECTION 2.06. Interest Elections.............................................................................. 18
SECTION 2.07. Termination and Reduction of Commitments........................................................ 19
SECTION 2.08. Repayment of Loans; Evidence of Debt............................................................ 20
SECTION 2.09. Prepayment of Loans............................................................................. 21
SECTION 2.10. Fees............................................................................................ 21
SECTION 2.11. Interest........................................................................................ 22
SECTION 2.12. Alternate Rate of Interest...................................................................... 23
SECTION 2.13. Increased Costs................................................................................. 23
SECTION 2.14. Break Funding Payments.......................................................................... 24
SECTION 2.15. Taxes........................................................................................... 25
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs...................................... 26
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.................................................. 27
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.01. Effective Date.................................................................................. 28
SECTION 3.02. Each Borrowing.................................................................................. 29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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SECTION 4.01. Organization and Good Standing.................................................................. 30
SECTION 4.02. Due Authorization............................................................................... 30
SECTION 4.03. No Conflicts.................................................................................... 30
SECTION 4.04. Consents........................................................................................ 31
SECTION 4.05. Enforceable Obligations......................................................................... 31
SECTION 4.06. Financial Condition............................................................................. 31
SECTION 4.07. No Default...................................................................................... 31
SECTION 4.08. No Material Litigation.......................................................................... 31
SECTION 4.09. Taxes........................................................................................... 32
SECTION 4.10. Compliance with Law............................................................................. 32
SECTION 4.11. ERISA........................................................................................... 32
SECTION 4.12. Investment and Holding Company.................................................................. 32
SECTION 4.13. Environmental Laws.............................................................................. 32
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Information Covenants........................................................................... 32
SECTION 5.02. Books and Records; Communication with Accountants............................................... 34
SECTION 5.03. Compliance with Law............................................................................. 34
SECTION 5.04. Payment of Taxes................................................................................ 34
SECTION 5.05. Insurance....................................................................................... 34
SECTION 5.06. ERISA........................................................................................... 34
SECTION 5.07. Use of Proceeds................................................................................. 35
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Net Worth....................................................................................... 35
SECTION 6.02. Indebtedness.................................................................................... 35
SECTION 6.03. Consolidation, Merger........................................................................... 36
SECTION 6.04. Transfer of Assets.............................................................................. 36
SECTION 6.05. Transactions with Affiliates.................................................................... 36
SECTION 6.06. Liens........................................................................................... 37
SECTION 6.07. Swap Agreements................................................................................. 37
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default............................................................................... 38
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ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices......................................................................................... 42
SECTION 9.02. Waivers; Amendments............................................................................. 43
SECTION 9.03. Expenses; Indemnity; Damage Waiver.............................................................. 44
SECTION 9.04. Successors and Assigns.......................................................................... 45
SECTION 9.05. Survival........................................................................................ 48
SECTION 9.06. Counterparts; Integration; Effectiveness........................................................ 48
SECTION 9.07. Severability.................................................................................... 48
SECTION 9.08. Right of Setoff................................................................................. 49
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process...................................... 49
SECTION 9.10. WAIVER OF JURY TRIAL............................................................................ 49
SECTION 9.11. Headings........................................................................................ 50
SECTION 9.12. Confidentiality................................................................................. 50
SECTION 9.13. Interest Rate Limitation........................................................................ 50
SECTION 9.14. USA Patriot Act................................................................................. 51
EXHIBITS
Exhibit A Form of Assignment and Assumption
Exhibit B-1 Form of Opinion of the Borrower's General Counsel
Exhibit B-2 Form of Opinion of Xxxxxx & Xxxxxxx LLP
Exhibit C Form of Financial Covenant Compliance Certificate
Exhibit D Form of Responsible Party Certificate
Exhibit E-1 Form of Revolving Loan Promissory Note
Exhibit E-2 Form of Competitive Loan Promissory Note
SCHEDULES
Schedule 2.01-- Commitments
Schedule 4.08-- Litigation
Schedule 6.02-- Indebtedness
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CREDIT AGREEMENT dated as of October 20, 2004, among XXXXXXX
INCORPORATED, the Lenders party hereto and JPMORGAN CHASE BANK, as
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders make available
to the Borrower a revolving credit facility of up to $200,000,000 for the
purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make such facility available to
the Borrower, and the Administrative Agent has accepted its duties hereunder, on
the terms and subject to the conditions hereinafter set forth.
NOW THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or
indirect common control with such Person.
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"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Facility Fee Rate" means, for any day that percent per
annum set forth below opposite the Debt Ratings in effect on such day:
Debt Ratings Applicable Facility Fee
(S&P/Moody's) Rate
-------------------- -----------------------
Level 1 0.060%
AA- or higher/Aa3 or
higher
Xxxxx 0 0.000%
Xx/X0
Xxxxx 0 0.000%
X/X0
Xxxxx 4 0.090%
A-/A3
Xxxxx 0 0.125%
BBB+/Baa1
Xxxxx 0 0.150%
BBB or lower/Baa2 or
lower
"Applicable LIBOR Interest Addition" means, for any day that percent
per annum set forth below opposite the Debt Ratings in effect on such day:
2
Debt Ratings (S&P/Moody's) Applicable LIBOR
Interest Addition
--------------------------- -----------------
Level 1 0.115%
AA- or higher/Aa3 or higher
Xxxxx 0 0.000%
Xx/X0
Xxxxx 0 0.000%
X/X0
Xxxxx 4 0.260%
A-/A3
Xxxxx 0 0.375%
BBB+/Baa1
Xxxxx 0 0.475%
BBB or lower/Baa2 or lower
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently
in effect, giving effect to any assignments.
"Approved Fund" has the meaning assigned to such term in Section
9.04.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Xxxxxxx Incorporated, a Connecticut corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect or (b) a
Competitive Loan or group of Competitive Loans of the same Type made on
the same date and as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in Dollar deposits in the London
interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.13(b), by any lending office
of such Lender or by such Lender's holding company, if any) with any
request, guideline or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Competitive Loans.
"CLO" has the meaning assigned to such term in Section 9.04.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.07 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $200,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
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"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consistent Basis" means, with regard to the application of
accounting principles, accounting principles consistent in all material
respects with the accounting principles used and applied in preparation of
the audited financial statements previously delivered to the Lenders and
referred to in Section 4.06, except as to changes required or permitted by
GAAP.
"Continuing Directors" means the directors of the Borrower on the
Effective Date, and each other director, if, in each case, such other
director's nomination is recommended by at least 66 2/3% of the then
Continuing Directors.
"Controlled Group" means (i) the controlled group of corporations as
defined in Section 414(b) of the Code and the applicable regulations
thereunder, or (ii) the group of trades or businesses under common control
as defined in Section 414(c) of the Code and the applicable regulations
thereunder, of which the Borrower is a part or may become a part.
"Debt Ratings" means, as of any date of determination, the rating as
announced by Standard & Poor's Ratings Group, Inc. ("S&P") and Xxxxx'x
Investors Services, Inc. ("Moody's") of
(a) the Borrower's senior unsecured long-term indebtedness for
borrowed money that is not Guaranteed by any other Person or subject
to any other credit enhancement; or
(b) if the applicable rating agency does not have a rating in
effect with respect to the Borrower's debt referred to in the
foregoing clause (a), the credit facility provided for herein or, if
no such rating is in effect, the rating of the Borrower's other
senior unsecured debt securities;
provided that, if the applicable Debt Ratings announced by S&P and Moody's
fall within different levels, the higher Debt Rating shall govern for the
purposes of determining the Applicable Facility Fee Rate and the
Applicable LIBOR Interest Addition unless the Debt Ratings are more than
one level apart, in which case the level one level lower than the higher
Debt Rating shall govern for the purposes of determining the Applicable
Facility Fee Rate and the Applicable LIBOR Interest Addition. If either
Moody's or S&P shall not have in effect a Debt Rating (other than by
reason of the circumstances described in the next succeeding sentence),
then the Debt Rating of the rating agency which has a Debt Rating in
effect shall govern for purposes of determining the Applicable Facility
Fee Rate and the Applicable LIBOR Interest Addition. If the rating system
of Moody's or S&P shall materially change, or if each such rating agency
shall cease to be in the business of rating corporate debt obligations or
shall not have in effect a Debt Rating, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agencies,
and, pending the effectiveness of any such amendment, the Debt Ratings
shall be determined by reference to the ratings most recently in effect
prior to such change or
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cessation; provided further that after 90 days, if no such amendment
becomes effective, the Applicable Facility Fee Rate shall be 0.150% per
annum and any Eurodollar Loan then outstanding shall convert to an ABR
Loan at the end of the applicable Interest Period. Any change in the Debt
Rating shall be effective as of the date on which it is first announced by
the applicable rating agency and notice of such change shall be provided
by the Borrower to the Administrative Agent no more than five Business
Days after the date of such announcement.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 3.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means any applicable federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit or
license regulating, relating to, or imposing liability or standards of
conduct concerning, any environmental matters.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and the
rulings issued thereunder.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which, together with the Borrower or any Subsidiary of the
Borrower, would be deemed to be a member of the same Controlled Group.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO
Rate (or, in the case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning specified in Article VII.
"Existing Credit Agreement" means that certain Credit Agreement
dated as of July 18, 2002, as amended, by and among the Borrower, the
lenders party thereto and JPMorgan Chase Bank, as Administrative Agent.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other
6
jurisdiction in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section
2.15(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fixed Rate" means, with respect to any Competitive Loan (other than
a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of
7
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary
course of business.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, (g) all Guarantees by such Person of Indebtedness of
others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party
in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances, (k) all obligations of such Person in respect of
Swap Agreements and (l) all obligations of such Person to make lease
payments or other payments under any "synthetic lease". The Indebtedness
of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent such Person is liable therefore as a result of such Person's
ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Intellectual Property" means all intellectual and similar property,
including inventions, designs, patents, patent registrations and
applications, trademarks, trademark registrations and applications, trade
dress, service marks, copyrights, copyright registrations and
applications, know-how and trade secrets.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration,
each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest
Period and (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the
8
Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of
90 days' duration after the first day of such Interest Period, and any
other dates that are specified in the applicable Competitive Bid Request
as Interest Payment Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending
on the numerically corresponding day in the calendar month that is one,
two, three or six months (or, with the consent of each Lender, nine or
twelve months) thereafter, as the Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than
seven days or more than 360 days) commencing on the date of such Borrowing
and ending on the date specified in the applicable Competitive Bid
Request; provided that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing
only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof,
the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation
of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in
the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the
rate for Dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
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"Lien" means any interest in property securing any obligation owed
to, or a claim by, a Person other than the owner of the property, and
including but not limited to the lien or security interest arising from a
mortgage, encumbrance, pledge or security agreement. For the purposes of
this Agreement, the Borrower and any Subsidiary shall be deemed to be the
owner of any property which it has acquired or holds subject to a
conditional sale agreement, financing lease, or other arrangement pursuant
to which title to the property has been retained by or vested in some
other Person for security purposes.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest,
if any, to be added to or subtracted from the LIBO Rate to determine the
rate of interest applicable to such Loan, as specified by the Lender
making such Loan in its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, (ii) the ability of the
Borrower to perform its payment obligations under this Agreement or (iii)
the validity or enforceability of this Agreement, or the rights and
remedies of the Lenders hereunder.
"Maturity Date" means October 20, 2009.
"Multiemployer Plan" means an employee pension benefit plan within
the meaning of Section 4001(a)(3) of ERISA to which any member of the
Controlled Group is then making or accruing an obligation to make
contributions or has within the preceding three plan years made
contributions, including for these purposes any Person which ceased to be
a member of the Controlled Group during such three year period.
"Net Worth" means, at any date, stockholders' equity of the Borrower
at such time determined in accordance with GAAP applied on a Consistent
Basis.
"Other Taxes" means 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.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA, and any successor thereto.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
10
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance or other social security laws or regulations (other than
ERISA);
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of the Borrower or any Subsidiary.
"Person" means any individual, partnership, joint venture, limited
liability company, firm, corporation, association, trust or other
enterprise (whether or not incorporated), or any Governmental Authority.
"Plan" means any multiemployer or single-employer plan as defined in
Section 4001 of ERISA, which is maintained, or at any time during the
three calendar years preceding the date of this Agreement was maintained,
for employees of the Borrower, any Subsidiary or an ERISA Affiliate.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly announced
as being effective.
"Principal Property" means, in respect of any Lien: (a) any
manufacturing facility of, or other real property owned by, the Borrower
or any of its Subsidiaries located in the United States of America, (b)
any accounts receivable, inventory or Intellectual Property of the
Borrower or any of its domestic Subsidiaries or (c) any shares of capital
stock, other equity ownership interests or intercompany indebtedness of
any Subsidiary that owns any of the foregoing.
"Register" has the meaning set forth in Section 9.04.
"Regulation D" means Regulation D of the Board as from time to time
in effect and any successor to all or a portion thereof establishing
reserve requirements.
"Regulation T, U or X" means Regulation T, U or X, as applicable, of
the Board as from time to time in effect and any successor to all or a
portion thereof establishing margin requirements.
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"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the
sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the
Commitments expire or terminate, the outstanding Competitive Loans of the
Lenders shall be included in their respective Revolving Credit Exposures
in determining the Required Lenders.
"Responsible Party" means the chief executive officer, president or
chief financial officer of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the outstanding principal amount of such Lender's Revolving Loans at
such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Significant Subsidiary" means, at any time, any Subsidiary that
would be a "significant subsidiary" within the meaning of Regulation S-X
of the Securities and Exchange Commission.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate,
for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Subsidiary" means with respect to a Person, at any date, (i) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time,
any class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time owned
by such Person directly or indirectly through Subsidiaries, and (ii) any
partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than a 50%
equity interest at any time. Except as
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otherwise expressly provided, all references herein to "Subsidiary" shall
mean a Subsidiary of the Borrower.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these
transactions; provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former
directors, officers, employees or consultants of the Borrower or the
Subsidiaries shall be a Swap Agreement.
"Tangible Net Worth" means, at any date, the excess of total assets
over total liabilities of the Borrower and its Subsidiaries as of such
date determined on a consolidated basis in accordance with GAAP applied on
Consistent Basis, excluding, however, from the determination of total
assets (i) goodwill, capitalized research and development expenses,
Intellectual Property, licenses and rights if any in respect thereof, and
other similar intangibles and (ii) any items not included in clause (i)
above which are treated as intangibles in conformity with GAAP.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Capitalization" means, at any date, the sum of (a) total
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis
as of such date and (b) Net Worth as of such date.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or, in the case of a Competitive Loan or Borrowing,
the LIBO Rate or a Fixed Rate.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or
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otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) 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, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and
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(ii) each Competitive Borrowing shall be comprised entirely of Eurodollar Loans
or Fixed Rate Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of 15 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any
15
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) two Competitive Bid Requests on
the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m.,
16
New York City time, on the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
17
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by
18
hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is not less than $1,000,000 or an integral multiple thereof and
(ii) the Borrower shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in
19
accordance with Section 2.09, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Competitive Loan on the
last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by (i) a
Revolving Loan promissory note substantially in the form of Exhibit E-1 (or such
other form approved by the Borrower and the Administrative Agent, such approval
not to be unreasonably withheld) or (ii) a Competitive Loan promissory note
substantially in the form of Exhibit E-2 (or such other form approved by the
Borrower and the Administrative Agent, such approval not to be unreasonably
withheld). In such event, the Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such
20
Lender and its registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment and (ii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Facility Fee Rate on the daily amount of the Commitment
of such Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender ratably in accordance with such Lender's Commitment a utilization
fee, which shall accrue at a rate equal to 0.125% per annum on all outstanding
Loans for each day that the aggregate outstanding Loans are in excess of 50% of
the then aggregate Commitments; provided
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that, if any Lender continues to have any Loans outstanding after the
Commitments terminate, then such utilization fee shall continue to accrue on
such Loans during any period that such Lender continues to have any Loans
outstanding. Accrued utilization fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the date on which
the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any utilization fees accruing after the date on which
the Commitments terminate shall be payable on demand. All utilization fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and utilization fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest (i)
in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable LIBOR Interest
Addition, or (ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable
to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
22
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in
the case of a Eurodollar Competitive Loan, the Lender that is required to make
such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; provided that if the circumstances giving rise to such notice do
not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
23
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurodollar Loan or Fixed Rate Loan on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.09(b) and is revoked in
accordance therewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period
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therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for Dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or by the Administrative Agent on its own behalf or
on behalf of a Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
25
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.15, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.15 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without setoff or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (ii) second, towards payment of principal then due hereunder, ratably among
the parties entitled thereto in accordance with the amount of principal then due
to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans; provided that (i)
26
if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of setoff and counterclaim
with respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such
27
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans) and accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Executed Agreement. Receipt by the Administrative Agent of copies of
this Agreement executed by the parties hereto.
(b) Opinion of Counsel. Receipt by the Administrative Agent of opinions,
substantially in the form of Exhibit B and Exhibit B-1 and satisfactory to the
Lenders, addressed to the Lenders and dated as of the Effective Date from
Xxxxxxx X. Xxxxxx, Esq., Vice President, General Counsel and Secretary of the
Borrower and from Xxxxxx & Xxxxxxx LLP, special counsel to the Borrower.
(c) Resolutions. Receipt by the Administrative Agent of copies of
resolutions of the Board of Directors of the Borrower approving and adopting
this Agreement and the transactions contemplated herein and authorizing the
execution and delivery hereof, certified by a secretary or assistant secretary
of the Borrower as of the Effective Date to be true and correct and in force and
effect as of such date.
(d) Good Standing Certificate. Receipt by the Administrative Agent of a
certificate issued as of a recent date by the Secretary of State or other
appropriate Governmental Authority of the Borrower's jurisdiction of
incorporation as to the due existence and good standing of the Borrower therein.
28
(e) Incumbency Certificate. Receipt by the Administrative Agent of
specimen signatures of officers or other appropriate representatives executing
this Agreement on behalf of the Borrower, certified by the secretary or
assistant secretary of the Borrower as of the Effective Date.
(f) Articles of Incorporation. Receipt by the Administrative Agent of the
articles of incorporation, as amended, of the Borrower, certified by the
Secretary of State of the state of incorporation of the Borrower.
(g) Bylaws. Receipt by the Administrative Agent of the bylaws of the
Borrower certified as of the Effective Date as true and correct by the secretary
or assistant secretary of the Borrower.
(h) Financial Covenant Compliance Certificate. Receipt by the
Administrative Agent of a certificate of the chief financial officer of the
Borrower dated the Effective Date demonstrating compliance with the financial
covenants contained in Sections 6.01 and 6.02 as of the Effective Date,
substantially in the form of Exhibit C.
(i) Responsible Party Certificate. Receipt by the Administrative Agent of
a certificate of a Responsible Party dated the Effective Date, confirming
compliance with the conditions set forth in paragraphs (b) (excluding for this
purpose the parenthetical contained therein) and (c) of Section 3.02 and
paragraph (l) below, substantially in the form of Exhibit D.
(j) Payment of Fees and Expenses. Receipt by the Administrative Agent of
all fees and other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses and fees and disbursements of counsel.
(k) Repayment and Termination of Existing Credit Agreement. Receipt by the
Administrative Agent of evidence that all notices required to be given to effect
on the Effective Date with respect to the repayment, if applicable, and
termination of the Existing Credit Agreement shall have been given and the
Existing Credit Agreement shall be terminated.
(l) No Material Adverse Effect. Since December 31, 2003, there have
occurred no changes or circumstances which have had or are likely to have a
Material Adverse Effect.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
October 20, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 3.02. Each Borrowing. The obligation of each Lender to make
a Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
29
(a) the Administrative Agent shall have received written notice of the
Borrower's intent to borrow if required by Article II;
(b) the representations and warranties of the Borrower set forth in
Article IV (other than the representation set forth in Section 4.08 and the
representation set forth in the last sentence of Section 4.06) shall be true and
correct on and as of the date of such Borrowing with the same effect as though
such representations and warranties had been made on and as of such date, except
to the extent that such representations and warranties expressly relate to an
earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date;
(c) at the time of (and after giving effect to) such Borrowing, no Default
shall have occurred and be continuing; and
(d) immediately after giving effect to such Borrowing:
(i) the Revolving Credit Exposure of each Lender shall not exceed
such Lender's Commitment; and
(ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans shall not
exceed the total Commitments at such time.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (b),
(c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Administrative Agent
and the Lenders that:
SECTION 4.01. Organization and Good Standing. Each of the Borrower
and its Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of its incorporation, is duly
qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify would have a
Material Adverse Effect, and has the requisite corporate power and authority to
own its properties and to carry on its business as now conducted and as proposed
to be conducted.
SECTION 4.02. Due Authorization. The Borrower (i) has the corporate
power and requisite authority to execute, deliver and perform this Agreement and
(ii) is duly authorized to, and has been authorized by all necessary corporate
action, to execute, deliver and perform this Agreement.
SECTION 4.03. No Conflicts. Neither the execution and delivery of
this Agreement by the Borrower, nor the consummation of the transactions
contemplated herein, nor
30
performance by the Borrower of and compliance with the terms and provisions
hereof will (i) violate or conflict with any provision of the Borrower's
articles of incorporation or bylaws, (ii) violate, contravene or materially
conflict with any law, regulation (including Regulation U or Regulation X),
order, writ, judgment, injunction, decree or permit applicable to it, (iii)
violate, contravene or materially conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or by
which the Borrower may be bound or (iv) result in or require the creation of any
Lien upon or with respect to the Borrower's properties, except to the extent
that any such violation, contravention, conflict or Lien referred to in the
foregoing clauses (ii), (iii) or (iv) could not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.04. Consents. No consent, approval, authorization or order
of, or filing, registration or qualification with, any Governmental Authority or
third party is required in connection with the execution, delivery or
performance of this Agreement, except to the extent that the failure to obtain
such consents, approvals, authorization or orders, or to make any such filing,
registration or qualification, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.05. Enforceable Obligations. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower enforceable in accordance with its terms,
except as may be limited by bankruptcy or insolvency laws or similar laws
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and any implied covenant of good
faith and fair dealing.
SECTION 4.06. Financial Condition. The financial statements and
financial information provided to the Lenders, consisting of (a) an audited
consolidated balance sheet of the Borrower and its Subsidiaries dated as of
December 31, 2003, together with related consolidated statements of income,
stockholders' equity and changes in financial position or cash flow certified by
PricewaterhouseCoopers LLP, the Borrower's independent certified public
accountants, and (b) a Borrower prepared unaudited consolidated balance sheet of
the Borrower and its Subsidiaries dated as of June 30, 2004, together with
related consolidated statements of income, stockholders' equity and changes in
financial position or cash flow certified by the Borrower's chief financial
officer, fairly represent in all material respects the financial condition of
the Borrower and its Subsidiaries as of such respective dates and for such
periods and such financial statements were prepared in accordance with GAAP
applied on a Consistent Basis, subject to normal year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in the
foregoing clause (b). Since December 31, 2003, there have occurred no changes or
circumstances which have had or are likely to have a Material Adverse Effect.
SECTION 4.07. No Default. No Default presently exists.
SECTION 4.08. No Material Litigation. Except as disclosed in
Schedule 4.08, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
31
SECTION 4.09. Taxes. The Borrower has filed, or caused to be filed,
all tax returns (federal, state, local and foreign) required to be filed and
paid all amounts of Taxes shown thereon to be due (including interest and
penalties) and has paid all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing (or necessary to preserve any Liens in favor
of the Lenders), by it or its Subsidiaries, except for such Taxes (i) which are
not yet delinquent, (ii) which are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP or (iii) which, if not paid, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.10. Compliance with Law. The Borrower and each of its
Subsidiaries is in compliance with all laws, rules, regulations, orders and
decrees (including Environmental Laws) applicable to it or to its properties,
except for such laws, rules, regulations, orders and decrees noncompliance with
which could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.11. ERISA. Except, in the case of any of the following,
for matters which would not have a Material Adverse Effect, (i) no Reportable
Event (as defined in ERISA) has occurred and is continuing with respect to any
Plan; (ii) as of the end of the most recent Plan year, no Plan has an unfunded
current liability (determined under Section 412 of the Code) or an accumulated
funding deficiency; (iii) no proceedings have been instituted, or, to the
knowledge of the Borrower, planned, to terminate any Plan; (iv) neither the
Borrower, any Subsidiary or any ERISA Affiliate, nor any duly-appointed
administrator of a Plan has instituted or intends to institute proceedings to
withdraw from any Multiemployer Plan; and (v) each Plan has been maintained and
funded in all material respects with its terms and with the provisions of ERISA
applicable thereto.
SECTION 4.12. Investment and Holding Company. The Borrower is not an
"investment company," as such term is defined in the Investment Company Act of
1940 or a "holding company" as defined in the Public Utility Holding Company Act
of 1935.
SECTION 4.13. Environmental Laws. The Borrower and each Subsidiary
is in compliance with all applicable Environmental Laws, except to the extent
that noncompliance therewith could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as the Commitments
are in effect and until the Loans, together with interest, fees and other
obligations which are then due and payable hereunder, have been paid in full:
SECTION 5.01. Information Covenants. The Borrower will furnish, or
cause to be furnished, to the Administrative Agent and each Lender:
32
(a) Annual Financial Statements. As soon as available and in any event
within 90 days after the close of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year together with related consolidated statements of income and
retained earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year examined by
PricewaterhouseCoopers LLP, the Borrower's independent certified public
accountants, whose opinion shall be to the effect that such financial statements
have been prepared in accordance with GAAP applied on a Consistent Basis and
shall not be qualified as to the scope of the audit or as to the status of the
Borrower or any of its Subsidiaries as a going concern. The financial
information required by this Section 5.01(a) may be delivered in the form of an
Annual Report on Form 10-K as filed with the Securities and Exchange Commission.
(b) Quarterly Financial Statements. As soon as available and in any event
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such quarterly period together with related
consolidated statements of income and retained earnings and of cash flows for
such quarterly period and for the portion of the fiscal year ending with such
period, in each case setting forth in comparative form consolidated figures for
the corresponding period of the preceding fiscal year and accompanied by a
certificate of the chief financial officer of the Borrower as having been
prepared in accordance with GAAP applied on a Consistent Basis, subject to
normal year-end audit adjustments and the absence of footnotes. The financial
information required by this Section 5.01(b) may be delivered in the form of a
Quarterly Report on Form 10-Q as filed with the Securities and Exchange
Commission.
(c) Officer's Certificates. At the time of delivery of the financial
statements provided for in Sections 5.01(a) and (b) hereof, a certificate of the
chief financial officer of the Borrower substantially in the form of Exhibit C
to the effect that the Borrower is in substantial compliance with the terms of
this Agreement and no Default exists, or if any Default does exist specifying
the nature and extent thereof and what action the Borrower proposes to take with
respect thereto. Such certificate shall set forth reasonably detailed
calculations demonstrating compliance with Sections 6.01 and 6.02.
(d) SEC Reports. Promptly upon transmission thereof, copies of all filings
on Forms 00-X, 00-X, 0-X and registration statements filed by the Borrower with
the Securities and Exchange Commission, or any successor agency, and copies of
all reports furnished by the Borrower to its stockholders.
(e) Notice of Default, Litigation, etc. Upon a Responsible Party of the
Borrower obtaining knowledge thereof, it will give written notice to the
Administrative Agent and the Lenders (i) immediately, of the occurrence of an
event or condition consisting of a Default, specifying the nature and existence
thereof and what action the Borrower proposes to take with respect thereto, and
(ii) promptly, but in any event within five Business Days, of the occurrence of
any of the following with respect to the Borrower or any of its Subsidiaries:
(A) the pendency or commencement of any litigation, arbitral or governmental
proceeding against the Borrower or any of its Subsidiaries which is likely to
have a Material Adverse Effect, (B) any levy of an attachment, execution or
other process against its assets which is likely to have a Material Adverse
Effect, (C) the occurrence of an event or condition which shall constitute a
default or
33
event of default under any other agreement for borrowed money in excess of
$50,000,000 or (D) any development in its business or affairs which has resulted
in, or which the Borrower reasonably believes is likely to result in, a Material
Adverse Effect.
(f) Other Information. Promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Books and Records; Communication with Accountants. The
Borrower will, and will cause each of its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with good
accounting practices. The Borrower will, and will cause each of its Subsidiaries
to, permit on reasonable notice officers or designated representatives of the
Administrative Agent or any Lender to visit and inspect its properties, to
examine its books and records, and to discuss the affairs, finances and accounts
of the Borrower and its Subsidiaries with, and be advised as to the same by, the
Borrower's officers and its independent certified public accountants, all at
such reasonable times and as often as reasonably requested.
SECTION 5.03. Compliance with Law. The Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable laws, rules, regulations
and orders of, and all applicable restrictions imposed by all applicable
Governmental Authorities, except where any such noncompliance could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.04. Payment of Taxes. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge all Taxes, assessments and
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent, unless the
same is being contested in good faith by appropriate proceedings and adequate
reserves therefor have been established in accordance with GAAP or unless the
failure to make such payments could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.05. Insurance. The Borrower will, and will cause each of
its Subsidiaries to, at all times maintain in full force and effect insurance in
such amounts, covering such risks and liabilities and with such deductibles or
self-insurance retentions as are in accordance with normal industry practice.
SECTION 5.06. ERISA. The Borrower will, and will cause each of its
Subsidiaries to, (a) at all times, make prompt payment of all contributions
required from the Borrower and each Subsidiary under all Plans and required of
the Borrower and each Subsidiary to meet the minimum funding standard set forth
in ERISA with respect to all Plans if the failure to make any such payment would
likely have a Material Adverse Effect; and (b) notify the Administrative Agent
immediately of any fact, including any Reportable Event (as defined in ERISA)
arising in connection with any of its Plans, which would reasonably be expected
to constitute grounds for termination thereof by the PBGC or for the appointment
by the appropriate United States District Court of a trustee to administer such
Plan, involving a Plan, the termination of which would reasonably be expected to
have a Material Adverse Effect,
34
together with a statement, if requested by the Lenders, as to the reason
therefor and the action, if any, proposed to be taken with respect thereof. The
Borrower will not, nor will it permit any of its Subsidiaries or ERISA
Affiliates to, (i) terminate a Plan if any such termination would give rise to
or result in any liability, or (ii) cause or permit to exist any event or
condition which presents a material risk of termination at the request of the
PBGC, where in either (i) or (ii) that liability would reasonably be expected to
have a Material Adverse Effect.
SECTION 5.07. Use of Proceeds. The proceeds of the Loans hereunder
will be used by the Borrower for working capital, capital expenditures, and
other lawful general corporate purposes, including support of the Borrower's
commercial paper program. None of the proceeds will be used for the purpose of
purchasing or carrying any "margin stock" (as such term is defined in Regulation
U) or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock in violation of the
requirements of Regulation U.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as the Commitments
are in effect and until the Loans, together with interest, fees and other
obligations which are then due and payable hereunder, have been paid in full:
SECTION 6.01. Net Worth. The Borrower will not permit the Net Worth
of the Borrower and its Subsidiaries at any time to be less than $675,000,000.
SECTION 6.02. Indebtedness. (a) The Borrower will not permit total
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis at any
time outstanding to exceed 55% of Total Capitalization at such time.
(b) Without limiting paragraph (a) above, the Borrower will not permit any
of its Subsidiaries to create, incur, assume, suffer to exist any Indebtedness
(including any Guarantee of any Indebtedness), except:
(i) Indebtedness of any such Subsidiary owed to the Borrower or to a
Subsidiary of the Borrower;
(ii) Indebtedness of any such Subsidiary existing on the Effective
Date (all Indebtedness of the Subsidiaries of the Borrower in an amount of
$1,000,000 or greater existing on the Effective Date is described on
Schedule 6.02) and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date;
(iii) Endorsements of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
35
(iv) Indebtedness incurred in respect of (A) workers' compensation
claims, self-insurance obligations, bankers' acceptances, performance,
surety and similar bonds and completion guarantees provided by the
Borrower or a Subsidiary in the ordinary course of business, (B)
performance bonds or similar obligations of the Borrower or any of its
Subsidiaries for or in connection with pledges, deposits or payments made
or given in the ordinary course of business, and not for money borrowed,
in connection with or to secure statutory, regulatory or similar
obligations, including obligations under health, safety or environmental
obligations, and (C) Guarantees to suppliers, lessors, licensees,
contractors, franchises or customers of obligations incurred in the
ordinary course of business and not for money borrowed;
(v) Indebtedness incurred by any Subsidiary constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business;
(vi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except in
the case of daylight overdrafts) drawn against insufficient funds in the
ordinary course of business, provided, however, that such Indebtedness is
extinguished within five Business Days of incurrence; and
(vii) Indebtedness of Subsidiaries of the Borrower not otherwise
permitted by the foregoing clauses of this Section; provided that the
aggregate principal amount of such additional Indebtedness of all such
Subsidiaries at any one time outstanding permitted under this clause (vii)
does not exceed $10,000,000.
SECTION 6.03. Consolidation, Merger. The Borrower will not dissolve,
liquidate, or wind up its affairs, or enter into any transaction of merger or
consolidation unless (i) the Borrower is the surviving corporation of such
merger or consolidation or (ii) the surviving corporation in such merger or
consolidation shall be a corporation existing under the laws of the United
States of America, any state thereof or the District of Columbia (the "Successor
Corporation"), the Successor Corporation shall expressly assume, by amendment to
this Agreement executed by the Borrower, the Successor Corporation and the
Administrative Agent, the due and punctual payment of the principal of and
interest on the Loans and all other amounts payable under this Agreement and the
payment and performance of every covenant hereof on the part of the Borrower and
its Subsidiaries to be performed or observed, and no Default shall have occurred
or be continuing at the time of such merger or consolidation or would result
from such merger or consolidation.
SECTION 6.04. Transfer of Assets. The Borrower will not sell, lease,
transfer or otherwise dispose of all or substantially all of its property or
assets, except to a wholly-owned Subsidiary of the Borrower.
SECTION 6.05. Transactions with Affiliates. The Borrower will not,
nor will it permit any Subsidiary to, other than in the ordinary course of
business, enter into any transaction or series of transactions, with any
Affiliate of the Borrower, other than on terms and conditions
36
substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by it in a comparable arm's-length transaction with a Person other
than an Affiliate.
SECTION 6.06. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
Principal Property now owned or hereafter acquired by it to secure Indebtedness
of the Borrower or any Subsidiary, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof; provided that (i) such Lien shall not cover any
other property or asset of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except in respect of any fees and expenses
incurred in connection with any such extension, renewal or replacement);
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Borrower or any Subsidiary or existing on any property or asset
of any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, as the case may be, (ii) such Lien shall not cover any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except in respect of any fees and expenses
incurred in connection with any such extension, renewal or replacement);
(d) Liens on fixed or capital assets acquired, constructed or improved by
the Borrower or any Subsidiary; provided that (i) such Liens and the
Indebtedness secured thereby are incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement, and (ii) such
Liens shall not cover any other property or assets of the Borrower or any
Subsidiary or secure any Indebtedness other than the Indebtedness incurred to
finance the acquisition, construction or improvement of such fixed or capital
assets; and
(e) Liens not otherwise permitted hereunder; provided that, at the time of
the creation, incurrence or assumption of any Indebtedness secured by any Lien
and after giving effect thereto, the aggregate principal amount of the
Indebtedness of the Borrower and the Subsidiaries secured by Liens permitted
under this clause (e) does not exceed an amount equal to 10% of Tangible Net
Worth at such time.
SECTION 6.07. Swap Agreements. The Borrower will not and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the Borrower or
any Subsidiary has actual exposure (other than those in respect of shares of
capital stock or other equity ownership interests of the Borrower or any of its
Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating
37
rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Borrower shall (i) default in the payment when due of any
principal of any Loan, or (ii) default, and such default shall continue for five
or more days, in the payment when due of any interest on any Loan, or of any
fees or other amounts owing hereunder or in connection herewith; or
(b) Representations. Any representation, warranty or statement made or
deemed to be made by the Borrower herein or in connection with this Agreement or
in any statement or certificate delivered or required to be delivered pursuant
hereto shall prove untrue in any material respect on the date as of which it was
deemed to have been made; or
(c) Covenants. The Borrower shall (i) default in the due performance or
observance of any term, covenant or agreement contained in Section 5.07 or
Article VI, or (ii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in subsections (a),
(b) or (c)(i) of this Section 7.01) contained in this Agreement and such default
shall continue unremedied for a period of at least 30 days after notice thereof
by the Administrative Agent or any Lender to the Borrower; or if without the
written consent of the Lenders, this Agreement shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or unenforceable for
any reason whatsoever (other than as expressly provided for hereunder); or
(d) Bankruptcy, etc. (i) The Borrower or any of its Significant
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
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its 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 Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of its Significant Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above which (x)
results in the entry of an order for relief or any such adjudication or
appointment or (y) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower or any of its
Significant 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
38
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any of its Significant 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
(e) Defaults under Other Agreements. The Borrower or any of its
Subsidiaries shall (A) default in any payment with respect to any Indebtedness
(other than the Loans hereunder) in excess of $50,000,000, individually or in
the aggregate for the Borrower and its Subsidiaries collectively, or (B) default
in the observance or performance of any agreement or condition relating to any
such Indebtedness (other than Loans hereunder) in excess of $50,000,000 or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or condition exist, the
effect of which default or other event or condition is to (i) cause such
Indebtedness to become due prior to its stated maturity or (ii) enable or permit
(with or without the giving of notice, the lapse of time or both) the holder or
holders of such Indebtedness or any trustee or agent on its or their behalf to
cause such Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; or
(f) Judgments. One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving a liability of $50,000,000 or
more in any instance or in the aggregate for all such judgments and decrees for
the Borrower and its Subsidiaries collectively (not paid or fully covered by
insurance provided by a carrier who has acknowledged coverage or covered by an
indemnification provided by a credit-worthy indemnitor) and any such judgments
or decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within 60 days from the entry thereof; or
(g) ERISA. The Borrower, any Subsidiary or any ERISA Affiliate shall fail
to pay when due an amount or amounts aggregating in excess of $50,000,000 which
it shall have become liable to pay under ERISA; or notice of intent to terminate
a Plan or Plans which in the aggregate have unfunded liabilities in excess of
$50,000,000 (individually and collectively, a "Material Plan") shall be filed
under ERISA by the Borrower, any Subsidiary or any ERISA Affiliate, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the Controlled Group to incur a current payment obligation in
excess of $50,000,000, and the liability that, individually or in the aggregate,
would reasonably be expected to occur would result in a Material Adverse Effect;
or
(h) Change in Control. (i) Any "person" or "group" (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) (other than either of the
two trusts (the "Roche Trust" and the "Xxxxxxx Trust") which, as of the
Effective Date, each own more that 5% of the Class A Common Stock of the
Borrower and the beneficiaries of which are the issue of Xxxxxx Xxxxxxx and, in
the case of the Roche Trust, their spouses, or any future trust established for
any of the
39
same beneficiaries) either (A) becomes the "beneficial owner" (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), directly or
indirectly, of voting securities of the Borrower (or securities convertible into
or exchangeable for such voting securities) representing 40% or more of the
combined voting power of all voting securities of the Borrower (on a fully
diluted basis) or (B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Borrower; or (ii) during any
period of up to 12 consecutive months, commencing on the Effective Date,
Continuing Directors shall cease for any reason (other than the death,
disability or retirement of a director) to constitute a majority of the board of
directors of the Borrower;
then, in any such event, and at any time thereafter, the Administrative Agent,
upon the direction of the Required Lenders, shall, by written notice to the
Borrower take any of the following actions without prejudice to the rights of
the Administrative Agent or any Lender to enforce its claims against the
Borrower, except as otherwise specifically provided for herein:
(i) Termination. Declare the Commitments of each Lender terminated,
whereupon the Commitment of each Lender hereunder shall terminate
immediately;
(ii) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all the outstanding Loans, together with all fees
and other obligations of the Borrower accrued hereunder, to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and
(iii) Enforcement of Rights. Enforce any and all rights and remedies
of the Administrative Agent or the Lenders in respect of the Loans,
including without limitation all rights of setoff; provided however that,
notwithstanding the foregoing, if an Event of Default specified in Section
7.01(d) with respect to the Borrower shall occur, then the Commitments of
the Lenders hereunder shall automatically terminate and the Loans,
together with accrued interest thereon and all fees and other obligations
of the Borrower accrued hereunder, shall immediately become due and
payable without the giving of any notice or other action by the
Administrative Agent or any Lender.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from,
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lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facility provided
for herein as well as activities as Administrative Agent.
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Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges 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 credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges 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 from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
Each party hereto agrees and acknowledges that (i) the Syndication Agents
do not have any duties or responsibilities in their capacities as Syndication
Agents, respectively, hereunder and shall not have, or become subject to, any
liability hereunder in such capacities and (ii) the exculpation provisions
contained herein relating to the Administrative Agent shall be equally
applicable to the Syndication Agents and the Syndication Agents shall each
receive the full benefit thereof.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
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(i) if to the Borrower, to it at 000 Xxxxx Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxxx 00000-0000, Attention of Xxxxx X. Xxxxxxx (Telecopy No. (203)
799-4205), with a copy to Xxxxxxx X. Xxxxxx, Vice President, General
Counsel and Secretary (Telecopy No.(000) 000-0000);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan
and Agency Services Group, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX
00000, Attention of Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a
copy to JPMorgan Chase Bank, Xxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX
00000, Attention of Xxxxx Xxxxxxxx (Telecopy No.(000) 000-0000); and
(iii) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written
43
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.16(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, or (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder without the prior written
consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facility provided for herein, the preparation and
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii)
any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid
44
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, any Loan
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
five days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees (other than an Affiliate of the
Borrower) all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it), with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund (as defined below) or, if an Event of Default under
clause (a) or (d) of Article VII has occurred and is continuing, any other
assignee; and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an Affiliate
of a Lender or for an assignment to an assignee that is a Lender
immediately prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000
45
unless each of the Borrower and the Administrative Agent otherwise
consent; provided that no such consent of the Borrower shall be required
if an Event of Default under clause (a) or (d) of Article VII has occurred
and is continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations
under this Agreement; provided that this clause shall not apply to rights
in respect of outstanding Competitive Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; and
(E) in the case of an assignment to a CLO (as defined below),
the assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
the Assignment and Assumption between such Lender and such CLO may provide
that such Lender will not, without the consent of such CLO, agree to any
amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such CLO.
For purposes of this Section 9.04(b), the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary
course of its business and is administered or managed by a Lender to an
Affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.
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(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c)(i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant"), other than to an Affiliate of the Borrower, in
all or a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver described
in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.13, 2.14
and 2.15 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.16(c) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of
47
Section 2.15 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.15(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no
such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 3.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
48
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
49
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be
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increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 9.14. USA Patriot Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), (the "Act"), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX INCORPORATED,
by __________________________________
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
by __________________________________
Name:
Title:
SIGNATURE PAGE TO XXXXXXX
INCORPORATED CREDIT AGREEMENT
DATED AS OF OCTOBER 20, 2004
Name of Institution _______________________________________
by _________________________________
Name:
Title:
