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SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
among
XXXXXX XXXXXXX LLC,
XXXXXX XXXXXXX USA CORPORATION,
XXXXXX XXXXXXX ENERGY INTERNATIONAL,
XXXXXX XXXXXXX ENERGY CORPORATION,
THE GUARANTORS SIGNATORY HERETO,
THE LENDERS SIGNATORY HERETO,
BANK OF AMERICA, N.A.
as Administrative Agent,
FIRST UNION NATIONAL BANK, as Syndication Agent,
and
ABN AMRO Bank N.V., as Documentation Agent
arranged by
BANC OF AMERICA SECURITIES LLC, as Lead Arranger and Book Manager,
and
ABN AMRO BANK N.V., FIRST UNION CAPITAL MARKETS,
GREENWICH NATWEST STRUCTURED FINANCE INC.
AND TORONTO DOMINION BANK, as Arrangers
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Dated as of May 25, 2001
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TABLE OF CONTENTS
SECTION HEADING PAGE
Recitals.......................................................................1
ARTICLE I DEFINITIONS; CONSTRUCTION................................2
Section 1.01. Certain Definitions......................................2
Section 1.02. Construction............................................22
Section 1.03. Accounting Principles...................................23
Section 1.04. Optional Increase of the Commitments....................24
Section 1.05. Utilization of Commitments in Foreign Currencies........25
ARTICLE II THE CREDITS.............................................26
Section 2.01. Revolving Credit Loans..................................26
Section 2.02. Fees; Reduction of the Committed Amounts................26
Section 2.03. Competitive Bid Loans...................................28
Section 2.04. Maximum Aggregate Amount of Loans and Letters of Credit.36
Section 2.05. Swingline Advances......................................36
Section 2.06. Letters of Credit.......................................39
Section 2.06.01. Letter of Credit Sublimit...............................39
Section 2.06.02. Issuance, Amendment and Renewal of Letters of Credit....40
Section 2.06.03. Risk Participations, Drawings and Reimbursements........42
Section 2.06.04. Repayment of Participations.............................44
Section 2.06.05. Role of the LC Issuer...................................44
Section 2.06.06. Obligations Absolute....................................45
Section 2.06.07. Cash Collateral Pledge..................................46
Section 2.06.08. Uniform Customs and Practice............................46
Section 2.07. Making of Loans.........................................47
Section 2.08. Interest Rates..........................................48
Section 2.09. Conversion or Renewal of Interest Rate Options..........51
Section 2.10. Prepayments Generally...................................52
Section 2.11. Optional Prepayments; Mandatory Prepayments.............53
Section 2.12. Interest Payment Dates..................................54
Section 2.13. Pro Rata Treatment......................................54
Section 2.14. Additional Compensation in Certain Circumstances........54
Section 2.15. Payments Generally; Interest on Overdue Amounts.........57
Section 2.16 Taxes59
Section 2.17. Funding by Branch, Subsidiary or Affiliate..............61
Section 2.18. Extension of Revolving Credit Maturity Date.............61
Section 2.19. Appointment of Company as Agent for Borrower............62
Section 2.20. Borrower Waiver.........................................62
Section 2.21. Designation of Borrowing Subsidiaries...................63
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ARTICLE III REPRESENTATIONS AND WARRANTIES.........................64
Section 3.01. Corporate Status........................................64
Section 3.02. Corporate Power and Authorization.......................64
Section 3.03. Execution and Binding Effect............................64
Section 3.04. Governmental Approvals and Filings......................65
Section 3.05. Absence of Conflicts....................................65
Section 3.06. Audited Financial Statements............................65
Section 3.07. Absence of Undisclosed Liabilities......................66
Section 3.08. Absence of Material Adverse Changes.....................66
Section 3.09. Accurate and Complete Disclosure........................66
Section 3.10. Margin Regulations......................................66
Section 3.11. Subsidiaries............................................67
Section 3.12. Partnerships, etc.......................................67
Section 3.13. Litigation..............................................67
Section 3.14. Absence of Events of Default............................67
Section 3.15. Absence of Other Defaults...............................67
Section 3.16. Insurance...............................................68
Section 3.17. Title to Property.......................................68
Section 3.18. Intellectual Property...................................68
Section 3.19. Taxes68
Section 3.20. Employee Benefits.......................................69
Section 3.21. Environmental Matters...................................70
ARTICLE IV CONDITIONS OF LENDING...................................71
Section 4.01. Conditions to Initial Loans or Letter of Credit.........71
Section 4.02. Conditions to All Loans and Letters of Credit...........72
ARTICLE V AFFIRMATIVE COVENANTS...................................73
Section 5.01. Basic Reporting Requirements............................73
Section 5.02. Insurance...............................................75
Section 5.03. Payment of Taxes and Other Potential Charges and Priori.76
Section 5.04. Preservation of Corporate Status........................76
Section 5.05. Governmental Approvals and Filings......................76
Section 5.06. Maintenance of Properties...............................77
Section 5.07. Avoidance of Other Conflicts............................77
Section 5.08. Financial Accounting Practices..........................77
Section 5.09. Use of Proceeds.........................................77
Section 5.10. Continuation of or Change in Business...................77
Section 5.11. Consolidated Tax Return.................................78
Section 5.12. Fiscal Year.............................................78
Section 5.13. ERISA78
Section 5.14. Ratings.................................................78
Section 5.15. Guaranty................................................79
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ARTICLE VI NEGATIVE COVENANTS......................................79
Section 6.01. Financial Covenants.....................................79
Section 6.02. Liens81
Section 6.03. Indebtedness............................................82
Section 6.04. Loans, Advances and Certain Investments.................83
Section 6.05. Changes in Business.....................................83
Section 6.06. Amendment of Certain Documents..........................83
Section 6.07. Mergers; Acquisitions...................................83
Section 6.08. ERISA Obligations.......................................84
Section 6.09. Principal Foreign Affiliates............................84
Section 6.10. Certain Agreements......................................84
Section 6.11. Restricted Payments.....................................85
Section 6.12. Transactions with Affiliates............................86
Section 6.13. Capital Expenditures....................................86
ARTICLE VII DEFAULTS................................................86
Section 7.01. Events of Default.......................................86
Section 7.02. Consequences of an Event of Default.....................89
ARTICLE VIII THE AGENTS..............................................90
Section 8.01. Appointment.............................................90
Section 8.02. General Nature of Agents' Duties........................90
Section 8.03. Exercise of Powers......................................91
Section 8.04. Certain Provisions......................................91
Section 8.05. Administration by the Agents............................92
Section 8.06. Lender Not Relying on Agents or Other Lenders...........93
Section 8.07. Indemnification.........................................93
Section 8.08. Agents in their Individual Capacities...................93
Section 8.09. Holders of Notes........................................94
Section 8.10. Successor Agents........................................94
Section 8.11. Calculations............................................94
Section 8.12. Funding by Administrative Agent.........................95
Section 8.13. Syndication Agent and Documentation Agent...............95
ARTICLE IX GUARANTY................................................95
Section 9.01. The Guaranty............................................95
Section 9.02. Bankruptcy..............................................95
Section 9.03. Nature of Liability.....................................96
Section 9.04. Independent Obligation..................................96
Section 9.05. Authorization...........................................96
Section 9.06. Reliance................................................97
Section 9.07. Subordination...........................................97
Section 9.08. Waiver..................................................98
Section 9.09. Nature of Liability.....................................98
Section 9.10. Judgments Binding.......................................99
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ARTICLE X MISCELLANEOUS...........................................99
Section 10.01. Holidays................................................99
Section 10.02. Records.................................................99
Section 10.03. Amendments and Waivers..................................99
Section 10.04. No Implied Waiver; Cumulative Remedies.................100
Section 10.05. Notices................................................101
Section 10.06. Expenses; Taxes; Indemnity.............................101
Section 10.07. Severability...........................................102
Section 10.08. Prior Understandings...................................102
Section 10.09. Duration; Survival.....................................103
Section 10.10. Counterparts...........................................103
Section 10.11. Limitation on Payments.................................103
Section 10.12. Set-Off................................................103
Section 10.13. Sharing of Collections.................................104
Section 10.14. Successors and Assigns; Participations; Assignments....104
Section 10.15. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial................................109
Section 10.16. Confidentiality........................................109
Section 10.17. Replacement of Lenders.................................110
Section 10.18. Judgment Currency......................................110
Section 10.19. Effectiveness..........................................111
Section 10.20. Entire Agreement - Construction........................111
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Competitive Bid Loan Quote Request
EXHIBIT C Form of Competitive Bid Loan Quote
EXHIBIT D Form of Competitive Bid Note
EXHIBIT E Form of Swingline Advance Note
EXHIBIT F Form of Quarterly Compliance Certificate
EXHIBIT G Form of Transfer Supplement
EXHIBIT H Subsidiary Guaranty Agreement
EXHIBIT I Joinder to Revolving Credit Agreement
EXHIBIT J Pledge Agreement
EXHIBIT K Commitment Increase Supplement
EXHIBIT L Request for Extension of Credit
EXHIBIT M Election to Participate
SCHEDULE 3.01 Corporate Status
SCHEDULE 3.02 Consents and Approvals
SCHEDULE 3.07 Indebtedness
SCHEDULE 3.11 Subsidiaries
SCHEDULE 3.12 Partnerships
SCHEDULE 3.21 Environmental Matters
SCHEDULE 6.02 Liens
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SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as
of May 25, 2001, by and among XXXXXX XXXXXXX LLC, a Delaware limited liability
company (the "COMPANY"), the Borrowing Subsidiaries (as hereinafter defined),
the guarantors party hereto from time to time (the "GUARANTORS", as defined
further below), the lenders party hereto from time to time (the "LENDERS", as
defined further below), Bank of America, N.A., as Administrative Agent for the
Lenders hereunder, First Union National Bank, as Syndication Agent, ABN AMRO
Bank N.V., as Documentation Agent, Banc of America Securities LLC, as Lead
Arranger and Book Manager and First Union Capital Markets, ABN AMRO Bank N.V.,
Greenwich NatWest Structured Finance Inc. and Toronto Dominion Bank, as the
Arrangers.
RECITALS
WHEREAS, Xxxxxx Xxxxxxx Corporation, the Lenders and the Agents are
currently party to that certain Amended and Restated Revolving Credit Agreement
dated as of December 1, 1999 (as amended, the "PREVIOUS CREDIT AGREEMENT").
Through a corporate reorganization (the "REORGANIZATION"), Xxxxxx Xxxxxxx
Corporation will merge with and into the Company with the Company being the
surviving entity of such merger. The sole member of the Company will be Foreign
Holdings Ltd., a newly formed Bermuda corporation ("FOREIGN HOLDINGS"), and
Foreign Holdings is a wholly-owned Subsidiary of Xxxxxx Xxxxxxx Ltd., also a
newly formed Bermuda corporation ("PARENT"). In connection with the
Reorganization, the existing shareholders of Xxxxxx Xxxxxxx Corporation will
become shareholders of Parent. As part of the Reorganization, Xxxxxx Xxxxxxx
Corporation and the guarantors under the Previous Credit Agreement ("PREVIOUS
GUARANTORS") have requested that the Previous Credit Agreement be amended in
certain respects as described below to provide, INTER ALIA, (i) that the
Company, and the Previous Guarantors will become "Borrowers" hereunder on a
joint and several basis, (ii) that Parent, Foreign Holdings and Xxxxxx Xxxxxxx
US Holdings, Inc., a Delaware corporation, and Xxxxxx Xxxxxxx International
Holdings, Inc., a Delaware corporation, which are two newly formed direct,
wholly-owned Subsidiaries of the Company (collectively, the "HOLDCOS"), which
will own 100% of the capital stock of the Previous Guarantors, shall provide a
guaranty of all obligations of the "Borrowers" hereunder, and (iii) that certain
additional technical modifications will be made to the Previous Credit Agreement
and the other Loan Documents and, for the sake of clarity and convenience, that
the Previous Credit Agreement be restated as so amended. This Agreement shall
become effective, and shall amend and restate the Previous Credit Agreement, on
the execution of this Agreement by the Credit Parties signatory hereto, the
Administrative Agent and the Required Lenders and the satisfaction of the
conditions precedent contained in Section 10.19 hereof; and from and after the
Effective Date, (i) all references made to the Previous Credit Agreement and the
Loan Documents or in any other instrument or document shall, without more, be
deemed to refer to this Second Amended and Restated Revolving Credit Agreement
and (ii) the Previous Credit Agreement shall be deemed amended and restated in
its entirety hereby.
WHEREAS, the Borrowers (as herein defined) have requested that the
Lenders continue to extend credit to the Company as well as to each Borrowing
Subsidiary, and the Lenders, upon the occurrence of the Effective Date and
subject to the terms hereof, will continue to lend monies and/or make advances,
extensions of credit or other financial accommodations to, on behalf of or for
the benefit of the Company and each Borrowing Subsidiary pursuant hereto.
NOW, THEREFORE, in consideration of the recitals set forth above,
which by this reference are incorporated into this Agreement set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and subject to the terms and conditions hereof and
on the basis of the representations and warranties herein set forth, the
Borrowers, the Guarantors, the Agents and the Lenders hereby agree to the
following:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.01. CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"ABSOLUTE RATE" shall have the meaning set forth in Section
2.03(d)(ii)(F) hereof.
"ABSOLUTE RATE AUCTION" shall mean a solicitation of Competitive Bid
Loan Quotes setting forth Absolute Rates pursuant to Section 2.03 hereof.
"ABSOLUTE RATE LOAN" or "ABSOLUTE RATE LOANS" shall mean any or all
Competitive Bid Loans the interest rates of which are determined on the basis of
Absolute Rates pursuant to an Absolute Rate Auction.
"ADMINISTRATIVE AGENT" shall mean, initially, Bank of America, N.A.,
in its capacity as Administrative Agent for the Lenders hereunder, and any
successor Administrative Agent appointed in accordance with Section 8.10 hereof.
"AFFECTED LENDER" shall have the meaning set forth in Section 2.08(e)
hereof.
"AFFILIATE" of a Person (the "SPECIFIED PERSON") shall mean (a) any
Person which directly or indirectly controls, or is controlled by, or is under
common control with, the Specified Person, and (b) any director or officer (or,
in the case of a Person which is not a corporation, any individual having
analogous powers) of the Specified Person or of a Person who is an Affiliate of
the Specified Person within the meaning of the preceding clause (a). For
purposes of the preceding sentence, "control" of a Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"AGENTS" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent and "Agent" shall mean any of the
foregoing.
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"ANNIVERSARY DATE" shall mean each February 12 during the term of
this Agreement.
"APPLICABLE MARGIN", "FACILITY FEE" AND "UTILIZATION FEE" each means
the number of basis points designated below in the applicable column and
appropriate grid:
-------------------------------- ----------- ------------ ------------- ------------ -----------
LEVEL I DAY LEVEL II DAY LEVEL III DAY LEVEL IV DAY LEVEL V DAY
-------------------------------- ----------- ------------ ------------- ------------ -----------
Applicable Margin for Base Rate 0 bps 25.0 bps 62.5 bps 87.5 bps 137.5 bps
Option
-------------------------------- ----------- ------------ ------------- ------------ -----------
Applicable Margin for CD Rate 90.0 bps 110.0 bps 142.5 bps 162.5 bps 192.5 bps
Option
-------------------------------- ----------- ------------ ------------- ------------ -----------
Applicable Margin for Euro Rate 77.5 bps 97.5 bps 130 bps 150 bps 180 bps
Option
-------------------------------- ----------- ------------ ------------- ------------ -----------
Facility Fee 22.5 bps 27.5 bps 32.5 bps 37.5 bps 57.5 bps
-------------------------------- ----------- ------------ ------------- ------------ -----------
Utilization Fee 12.5 bps 12.5 bps 12.5 bps 12.5 bps 12.5 bps
-------------------------------- ----------- ------------ ------------- ------------ -----------
(bps = basis points per annum)
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PROVIDED, HOWEVER, that:
(a) if on any day the Dollar Equivalent of the sum of the aggregate
principal amount of outstanding Loans under this Agreement and all Letter of
Credit Obligations exceeds 33% of the Total Revolving Credit Commitment under
this Agreement, an additional 0.125% per annum (the "UTILIZATION FEE") shall be
added to the Applicable Margin for such day (and the term "Applicable Margin"
shall be deemed to include the Utilization Fee).
"ASSESSMENT RATE" shall have the meaning set forth in Section
2.08(a)(ii) hereof.
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association.
"BASE RATE" shall have the meaning set forth in Section 2.08(a)(i)
hereof.
"BASE RATE AUCTION" shall mean a solicitation of Competitive Bid Loan
Quotes setting forth Base Rate Margins based on the Base Rate pursuant to
Section 2.03 hereof.
"BASE RATE LOANS" shall mean Competitive Bid Loans the interest rates
of which are determined on the basis of the Base Rate pursuant to a Base Rate
Auction.
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"BASE RATE MARGIN" shall have the meaning set forth in Section
2.03(d)(ii)(E) hereof.
"BASE RATE OPTION" shall have the meaning set forth in Section
2.08(a)(i) hereof.
"BASE RATE PORTION" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at such
time (i) under the Base Rate Option or (ii) in accordance with Section 2.15
hereof. If no Loan or Loans is specified, "Base Rate Portion" shall refer to the
Base Rate Portion of all Loans outstanding at such time.
"BENEFIT PLAN" shall mean any plan, agreement, arrangement or
commitment which is an employment or consulting agreement, executive
compensation plan, bonus plan, deferred compensation agreement, employee
pension, profit-sharing, savings or retirement plan, employee stock option or
stock purchase plan, retiree medical or life, group life, health, or accident
insurance or other benefit plan, agreement, arrangement or commitment,
including, without limitation, severance, or other bonus practice (including,
but not limited to, employee benefit plans, as defined in section 3(3) of
ERISA), with respect to which the Company, any Borrowing Subsidiary, any of the
Company's other Significant Subsidiaries, or a member of their respective
Controlled Group, at any relevant time have some liability or obligation to
contribute or pay benefits and which relates to current or former employees of
the Company, any Borrowing Subsidiary, any other Significant Subsidiary or any
member of their respective Controlled Group.
"BORROWERS" shall mean any one or more of the Company and any
Borrowing Subsidiary, and individually, the Borrowers are referred to as a
"Borrower".
"BORROWING SUBSIDIARY" means Xxxxxx Xxxxxxx USA Corporation, a
Delaware corporation, Xxxxxx Xxxxxxx Energy International, Inc., a Delaware
corporation, Xxxxxx Xxxxxxx Energy Corporation, a Delaware corporation, and any
other wholly-owned Subsidiary of the Company that has become or remains a
Borrowing Subsidiary pursuant to Section 2.21.
"BUSINESS DAY" shall mean (a) with respect to selection of the
Euro-Rate Option, prepayment of any Euro-Rate Portion of any Revolving Credit
Loans, determining the first or last day of any Euro-Rate Funding Period, the
giving of notices or quotes in connection with a LIBOR Auction or a payment of
principal of or interest on, or the Interest Period for, a LIBOR-based Loan, a
day for dealings in deposits in Dollars by and among banks in the London
interbank market and on which commercial banks are open for domestic and
international business in Los Angeles, California and New York, New York and (b)
with respect to selection of any other interest rate Option, prepayment of any
part of any other Portion of any Revolving Credit Loans, determining the first
or last day of any other Funding Period, the giving of notices or quotes in
connection with an Absolute Rate or a payment of principal of or interest on, or
the Interest Period for, an Absolute Rate Loan and in every other context, any
day other than a Saturday, Sunday or other day on which banking institutions are
authorized or obligated to close in Los Angeles, California or New York, New
York.
"CAPITALIZED LEASE" shall mean at any time any lease which is, or is
required under GAAP to be, capitalized on the balance sheet of the lessee at
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such time, and "CAPITALIZED LEASE OBLIGATION" of any Person at any time shall
mean the aggregate amount which is, or is required under GAAP to be, reported as
a liability on the balance sheet of such Person at such time as lessee under a
Capitalized Lease.
"CASH COLLATERALIZE" means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Administrative Agent, the LC
Issuer and the Lenders, as collateral for the applicable Letter of Credit
Obligations, cash or deposit account balances pursuant to documentation in form
and substance reasonably satisfactory to the Administrative Agent and the LC
Issuer. Derivatives of such term shall have corresponding meaning. Each Borrower
hereby grants the Administrative Agent, for the benefit of the Administrative
Agent, the LC Issuer and the Lenders, a security interest in all such cash and
deposit account balances. Cash collateral shall be maintained in blocked
interest bearing (to the extent available) deposit accounts at Bank of America.
"CD RATE" shall have the meaning set forth in Section 2.08(a)(ii)
hereof.
"CD RATE FUNDING PERIOD" shall have the meaning set forth in Section
2.08(c) hereof.
"CD RATE OPTION" shall have the meaning set forth in Section
2.08(a)(ii) hereof.
"CD RATE PORTION" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at any time
under the CD Rate Option or at a rate calculated by reference to the CD Rate
under Section 2.15 hereof. If no Loan or Loans is specified, "CD Rate Portion"
shall refer to the CD Rate Portion of all Loans outstanding at such time.
"CD RATE RESERVE PERCENTAGE" for any day and for any CD Rate Funding
Period shall mean the percentage (expressed as a decimal, rounded upward to the
nearest 1/100 of 1%), as determined in good faith by the Administrative Agent
(which determination shall be conclusive absent manifest error), which is in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) representing the maximum reserve requirement
(including without limitation supplemental, marginal and emergency reserve
requirements) for a member bank of such System in respect of nonpersonal time
deposits in Dollars in the United States having a maturity comparable to such CD
Rate Funding Period.
"CHANGE OF CONTROL" shall mean (a) any Person or group of Persons (as
used in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and the rules and regulations thereunder), other than
Parent and/or Foreign Holdings, shall have become the beneficial owner (as
defined in Rules 13d-3 and 13d-5 promulgated by the Securities and Exchange
Commission (the "SEC") under the Exchange Act) of 20% or more of the Company's
outstanding Voting Stock, unless a majority of the Continuing Directors approves
the acquisition not later than 10 days after such acquisition or (b) a change in
the board of directors of the Company shall have occurred which results in a
majority of directors not being Continuing Directors.
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"CLOSING DATE" shall mean the date on which the last of the
conditions set forth in Section 4.01 hereof has been satisfied in respect of the
Previous Credit Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"COMMITMENTS" of a Lender shall mean the Revolving Credit Commitment
of such Lender.
"COMMITMENT PERCENTAGE" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the signature
page hereof, subject to adjustment as provided in Sections 1.04 and 10.17 hereof
and subject to transfer to another Lender as provided in Section 10.14 hereof.
"COMPANY" shall have the meaning set forth in the initial paragraph
hereto.
"COMPETITIVE BID BORROWING" shall have the meaning set forth in
Section 2.03(b) hereof.
"COMPETITIVE BID EXPIRATION DATE" shall mean February 5, 2003, or
such later date as may be established as the Competitive Bid Expiration Date
pursuant to Section 2.18 hereof.
"COMPETITIVE BID LOAN" or "COMPETITIVE BID LOANS" shall mean any or
all loans provided for by Section 2.03 hereof.
"COMPETITIVE BID LOAN MATURITY DATE" shall have the meaning set forth
in Section 2.03(j) hereof.
"COMPETITIVE BID LOAN QUOTE" shall mean an offer in accordance with
Section 2.03(d) hereof by a Lender to make a Competitive Bid Loan.
"COMPETITIVE BID LOAN QUOTE REQUEST" shall have the meaning set forth
in Section 2.03(b) hereof.
"COMPETITIVE BID NOTE" shall have the meaning set forth in Section
2.03(p) hereof.
"COMPETITIVE BID RECORD" shall have the meaning set forth in Section
2.03(l) hereof.
"CONSOLIDATED ADJUSTED EBITDAR" for any period, with respect to the
Company and its consolidated Subsidiaries, shall mean the sum of (a)
Consolidated Net Income for such period (except for cash dividends paid pursuant
to Section 6.11(iv)(y) to the extent that such cash dividends relate to an
expense which, in accordance with GAAP, has already reduced Consolidated Net
Income for such period), (b) Consolidated Adjusted Interest Expense for such
period to the Consolidated Fixed Charges for such period) (c) charges against
income for foreign, federal, state and local income taxes for such period, (d)
the amount of all expenses for depreciation and amortization for such period and
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(e) Consolidated Adjusted Rental Expense for such period, all as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED ADJUSTED INTEREST EXPENSE" for any period shall mean
the sum of (a) the total interest expense of the Company and its consolidated
Subsidiaries (other than Special Purpose Subsidiaries) and (b) any cash dividend
paid on the Company's Trust Preferred, for such period determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED ADJUSTED RENTAL EXPENSE" for any period shall mean
aggregate rent and lease payments made pursuant to operating leases for such
period by the Company and its consolidated Subsidiaries (other than Special
Purpose Subsidiaries) determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED CAPITALIZATION" at any time shall mean the sum of
Consolidated Net Worth at such time and Consolidated Indebtedness at such time.
"CONSOLIDATED FIXED CHARGES" for any period shall mean the sum of
Consolidated Adjusted Interest Expense for such period and Consolidated Adjusted
Rental Expense for such period.
"CONSOLIDATED FIXED CHARGES COVERAGE RATIO" for any period shall mean
the ratio of the Consolidated Adjusted EBITDAR for such period (less any cash
dividend (or similar type of payment) paid on the Company's equity interest for
such period except for cash dividends paid pursuant to Section 6.11(iv)(y) to
the extent that such cash dividends relate to an expense which, in accordance
with GAAP, has already reduced Consolidated Adjusted EBITDAR for such period) to
the Consolidated Fixed Charges for such period.
"CONSOLIDATED INDEBTEDNESS" at any time shall mean the Indebtedness
of the Company and its consolidated Subsidiaries at such time determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" at any time shall mean the ratio of
Consolidated Indebtedness to the Consolidated Capitalization at such time.
"CONSOLIDATED NET INCOME" for any period shall mean the net earnings
(or loss) after taxes of the Company and its consolidated Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET WORTH" at any time shall mean the total amount of
stockholders' equity (including, without duplication, the face amount of the
Company's Trust Preferred issued and outstanding at such time) of the Company
and its consolidated Subsidiaries at such time determined on a consolidated
basis in accordance with GAAP, PROVIDED, that in the calculation of Consolidated
Net Worth of the Company solely for the purposes of Section 6.01(b), accumulated
other comprehensive income in accordance with GAAP shall be excluded.
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"CONTINUING DIRECTORS" shall mean members of the board of directors
of the Company who (a) were directors on January 1, 1999 or (b) have been
directors for at least two years, or (c) were nominated or elected with the
affirmative vote of the greater of (x) a majority of the Continuing Directors on
the board or (y) three Continuing Directors.
"CONTROLLED GROUP" shall mean with respect to any Person, all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with such Person, are
treated as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of
the Code or Section 4001(a)(2) of ERISA.
"CONVERTIBLE SUBORDINATED NOTES" shall mean Parent's Subordinated
Convertible Notes in an amount not to exceed $225,000,000 due in 2007 issued
pursuant to an Indenture to be entered into on or about May 25, 2001 among
Parent, the Company and the trustee party thereto.
"CORRESPONDING SOURCE OF FUNDS" shall mean:
(a) In the case of any Funding Segment of the CD Rate
Portion, the proceeds of hypothetical issuances by a Lender of one or
more of its certificates of deposit at the beginning of the CD Rate
Funding Period corresponding to such Funding Segment, having
maturities approximately equal to such CD Rate Funding Period and in
an aggregate amount approximately equal to such Lender's Pro Rata
share of such Funding Segment; and
(b) In the case of any Funding Segment of the Euro-Rate
Portion, the proceeds of hypothetical receipts by a Notional
Euro-Rate Funding Office or by a Lender through a Notional Euro-Rate
Funding Office of one or more Dollar deposits in the interbank
eurodollar market at the beginning of the Euro-Rate Funding Period
corresponding to such Funding Segment having maturities approximately
equal to such Euro-Rate Funding Period and in an aggregate amount
approximately equal to such Lender's Pro Rata share of such Funding
Segment.
"CREDITORS" shall mean the Lenders, the LC Issuer, the Swingline
Lender and the Agents.
"CREDIT PARTY" shall mean each of the Borrowers and the Guarantors.
"DEBT INSTRUMENT" shall have the meaning set forth in Section 7.01(f)
hereof.
"DOCUMENTATION AGENT" shall mean ABN AMRO Bank N.V., in its capacity
as documentation agent hereunder.
"DOLLAR," "DOLLARS" and the symbol "$" shall mean lawful money of the
United States of America.
"DOLLAR EQUIVALENT" shall mean, as of the date of determination, (a)
the amount denominated in Dollars, and (b) as to any amount denominated in
another currency, the equivalent amount in Dollars as determined by the
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Administrative Agent on the basis of the Spot Rate for the purchase of Dollars
with such currency; provided, that with respect to Letter of Credit Obligations
in Offshore Currencies that are valued as of the last Business Day of each
month, the equivalent amount in Dollars shall be determined by Bank of America
in its capacity as LC Issuer instead of the Administrative Agent.
"EFFECTIVE DATE" shall have the meaning given to that term in Section
10.19 hereof.
"ELIGIBLE ASSIGNEE" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
PROVIDED that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary or (d) another Lender.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any other
Person (including but not limited to any Governmental Authority, citizens' group
or present or former employee of such Person) alleging, asserting or claiming
any actual or potential (a) violation of any Requirements of Law, (b) liability
under any Requirements of Law or (c) liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Hazardous Materials at any
location, whether or not owned by such Person.
"ENVIRONMENTAL MATTERS" means any matter arising out of, relating to,
or resulting from any emissions, discharges, releases or threatened releases of
Hazardous Materials into the air, surface water, groundwater, or soil, or
otherwise arising out of, relating to, or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials.
"ENVIRONMENTAL PERMITS" means all permits, licenses, authorizations,
registrations and other governmental consents required by applicable
Requirements of Law for the use, storage, treatment, transportation, release,
emission and disposal of raw materials, by-products, wastes and other substances
used or produced by or otherwise relating to the operations of the Company and
any Significant Subsidiary of the Company.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA LIEN" shall mean a security interest or lien arising under or
in connection with a Pension Plan or Title IV of ERISA or a claim asserted
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(including for failure to withhold) by the government which if successful would
result in such a lien; PROVIDED, HOWEVER, that any claim asserted, (a) for which
the Company has reasonable grounds to contest and (b) which the Company is
diligently contesting in good faith through appropriate proceedings with the IRS
or a court of law, shall not be deemed an ERISA Lien for so long as all of the
above conditions are met.
"EUROCURRENCY LIABILITIES" shall have the meaning set forth in the
definition of Euro-Rate Reserve Percentage set forth in Section 1.01 hereof.
"EUROCURRENCY LOAN" shall have the meaning set forth in Section
2.03(r) hereof.
"EURO-RATE" shall have the meaning set forth in Section 2.08(a)(iii)
hereof.
"EURO-RATE FUNDING PERIOD" shall have the meaning set forth in
Section 2.08(c) hereof.
"EURO-RATE OPTION" shall have the meaning set forth in Section
2.08(a)(iii) hereof.
"EURO-RATE PORTION" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at any time
under the Euro-Rate Option or at a rate calculated by reference to the Euro-Rate
under Section 2.15 hereof. If no Loan or Loans is specified, "Euro-Rate Portion"
shall refer to the Euro-Rate Portion of all Loans outstanding at such time.
"EURO-RATE RESERVE PERCENTAGE" means for any day for any Lender for
any Funding Segment or Interest Period the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such day, as
determined in good faith by such Lender (which determination shall be conclusive
absent manifest error), under regulations issued from time to time by the Board
of Governors of the Federal Reserve System for determining the maximum reserve
requirement of such Lender (including any emergency, supplemental or other
marginal reserve requirement) with respect to eurocurrency funding (currently
referred to as "EUROCURRENCY LIABILITIES").
"EVENT OF DEFAULT" shall mean any of the Events of Default described
in Section 7.01 hereof.
"EXIT FUNDING AGREEMENT" shall mean that certain Exit Funding
Agreement dated as of October 15, 1999, by and between Xxxxxx Xxxxxxx
Corporation (or any successor thereto) and SunTrust Bank, Central Florida,
National Association related to the restructuring of certain indebtedness
originally incurred to finance a portion of the costs of constructing the
Xxxxxxx Facility.
"FACILITY FEE" is set forth in the definition of "APPLICABLE MARGIN."
"FEDERAL FUNDS EFFECTIVE RATE" for any day shall mean the rate per
annum (rounded upward to the nearest 1/100 of 1%) determined by the
Administrative Agent (which determination shall be conclusive) to be the rate
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per annum announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight Federal
funds transactions arranged by Federal funds brokers on the previous trading
day, as computed and announced by such Federal Reserve Bank (or any successor)
in substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; PROVIDED, that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"FINANCIAL LETTER OF CREDIT" means a Letter of Credit that is not, as
reasonably determined by the LC Issuer, a Performance Letter of Credit.
"FINANCIAL LETTER OF CREDIT SUBLIMIT" shall mean $20,000,000.
"FINANCIAL PROVISIONS" shall have the meaning set forth in Section
1.03(d) hereof.
"FOREIGN HOLDINGS" shall have the meaning set forth in the Recitals
hereto.
"FUNDING PERIODS" shall have the meaning set forth in Section 2.08(c)
hereof.
"FUNDING SEGMENT" of the CD Rate Portion or the Euro-Rate Portion, as
the case may be, of the Revolving Credit Loans at any time shall mean the entire
principal amount of such Portion to which at the time in question there is
applicable a particular Funding Period beginning on a particular day and ending
on a particular day. (By definition, each such Portion is at all times composed
of an integral number of discrete Funding Segments and the sum of the principal
amounts of all Funding Segments of any such Portion at any time equals the
principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"GOVERNMENTAL ACTION" shall have the meaning set forth in Section
3.04 hereof.
"GOVERNMENTAL AUTHORITY" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
"GUARANTEE" shall mean the guarantee by any Person to pay or perform
the obligations of any other Person, including any agreement, whether such
agreement is on a contingency basis or otherwise, to purchase, repurchase or
otherwise acquire Indebtedness of any other Person, or to purchase, sell or
lease, as lessee or lessor, property or services, in any such case primarily for
the purpose of enabling another Person to make payment of Indebtedness.
"GUARANTEED OBLIGATIONS" shall mean the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of the
principal and interest on each Note and Loan made under this Agreement and of
the Letter of Credit Obligations, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
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thereon) of each Borrower to the Agents, the LC Issuer, the Swingline Lender and
the Lenders now existing or hereafter incurred under, arising out of or in
connection with this Agreement or any other Loan Document to which any Borrower
is a party and the due performance and compliance with all the terms, conditions
and agreements contained in such Loan Documents by such Borrower.
"GUARANTORS" shall mean Parent, Foreign Holdings, Holdcos, and any
domestic Subsidiary of the Company, other than a Borrowing Subsidiary,
designated pursuant to Section 5.15 hereof.
"GUARANTY" shall mean the Guaranty as set forth in Article IX hereof.
"HAZARDOUS MATERIALS" means any pollutants, contaminants, hazardous
or toxic substances, materials or wastes (including petroleum, petroleum
by-products, PCBs, and friable asbestos) as those concepts are used in the
Comprehensive Environmental Response Compensation and Liability Act (CERCLA),
the Resource Conservation and Recovery Act (RCRA), the Toxic Substance Control
Act (TSCA), the Clean Air Act, the Clean Water Act, and other similar federal or
state statutes or regulations.
"HOLDCOS" shall have the meaning set forth in the Recitals hereto.
"INDEBTEDNESS" of a Person shall mean with respect to any Person,
without duplication, all (a) liabilities or obligations incurred in connection
with borrowings (including reimbursement obligations in respect of letters of
credit or banker's acceptances which have been drawn and including the sale of
debt securities) of such Person which in accordance with generally accepted
accounting principles would be included in determining total liabilities as
shown on the liability side of a balance sheet of such Person at the date as of
which Indebtedness is to be determined, including, without limitation,
Capitalized Lease Obligations of such Person; (b) liabilities or obligations of
such Person issued, incurred or assumed in respect of the purchase price of
property except for trade accounts payable incurred in the ordinary course of
business on which interest is not being accrued; (c) liabilities or obligations
of others of any of the types specified in the preceding clauses (a) and (b) for
which such Person is directly or indirectly liable, by way of guaranty (whether
by direct guaranty, suretyship, discount, endorsement, take-or-pay agreement,
agreement to purchase or advance or keep in funds or other agreement having the
effect of a guaranty) or otherwise; (d) liabilities or obligations of others of
any of the types specified in the preceding clauses (a) and (b) which are
secured by Liens on any assets of such Person, whether or not such liabilities
or obligations shall have been assumed by it; and (e) to the extent not included
in the preceding clauses (a) through (d), the excess over $10,000,000 of the
aggregate undrawn amount of all financial letters of credit issued on account of
such Person.
"INDEMNIFIED PARTIES" shall mean the Agents, the LC Issuer, the
Swingline Lender, the Lenders, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing.
"INDENTURE" shall have the meaning set forth in Section 6.10 hereof.
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"INITIAL REVOLVING CREDIT COMMITTED AMOUNT" shall have the meaning
set forth in Section 2.01(a) hereof.
"INTEREST PERIOD" shall mean with respect to any Competitive Bid
Loan, the period commencing on the date such Competitive Bid Loan is made and
ending on a date not less than seven days nor more than 180 days thereafter
(with respect to any Absolute Rate Loan) or 30, 60, 90 or 180 days thereafter
(with respect to any CD Rate Loan) or one, two, three or six months (with
respect to any LIBO-Rate Loan), as the Company may specify in the related
Competitive Bid Loan Quote Request as provided in Section 2.03(b) hereof,
PROVIDED that:
(a) No Interest Period may end after the Competitive Bid
Expiration Date;
(b) Each Interest Period that would otherwise end on a
day that is not a Business Day shall end on the next succeeding
Business Day or, in the case of an Interest Period for a LIBOR-based
Loan, if such next succeeding Business Day falls in the next
succeeding calendar month, then such Interest Period shall end on the
next preceding Business Day; and
(c) Notwithstanding clauses (a) and (b) above, no
Interest Period for any Competitive Bid Loan shall have a duration of
less than seven days and, if the Interest Period for any Competitive
Bid Loan would otherwise be a shorter period, such Competitive Bid
Loan shall not be available hereunder.
"INVESTMENT" by any Person in any other Person shall mean:
(a) the amount paid, or the value of property or services
contributed, by such Person for or in connection with the acquisition
by such Person of any stock, bonds, notes, debentures, option
contracts, investment contracts, partnership or other ownership
interests or other securities of any other Person;
(b) the amount of any advance, loan or extension of
credit to any other Person by such Person; and
(c) the amount of any Indebtedness of any other Person
which such Person has guaranteed and which by its terms or as a
consequence of any default thereunder such Indebtedness has or may,
at the option of the holder thereof, become due and payable by
acceleration or otherwise.
"IRS" shall mean the Internal Revenue Service.
"ISSUANCE" means, with respect to any Letter of Credit, the issuance,
extension of the expiry of, renewal or increase in the amount of such Letter of
Credit. "ISSUE," "ISSUED" and "ISSUING" have corresponding meanings.
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"LAW" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Governmental Authority.
"LC ISSUER" means Bank of America or any other Lender replacing Bank
of America as LC Issuer upon the mutual consent of the Company and the
Administrative Agent, in each case not to be unreasonably withheld, and such
Lender.
"LENDER" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Sections 1.05, 10.14 and 10.17 hereof
pertaining to Persons becoming or ceasing to be Lenders.
"LETTER OF CREDIT" means a Financial Letter of Credit or a
Performance Letter of Credit issued hereunder.
"LETTER OF CREDIT ADVANCE" means each Lender's participation in any
Letter of Credit Borrowing under Section 2.06.03.
"LETTER OF CREDIT AMENDMENT APPLICATION" means an application form
for amendment of outstanding Letters of Credit as shall at any time be in use by
the LC Issuer, as the LC Issuer shall request.
"LETTER OF CREDIT APPLICATION" means an application form for issuance
of Letters of Credit as shall at any time be in use by the LC Issuer, as the LC
Issuer shall request.
"LETTER OF CREDIT BORROWING" means each drawing under any Letter of
Credit that is not reimbursed under Section 2.06.03 or converted into a
borrowing of Revolving Credit Loans under Section 2.06.03.
"LETTER OF CREDIT OBLIGATIONS" means the sum of (a) the aggregate
undrawn amount of all outstanding Letter of Credit and (b) the aggregate amount
of all unreimbursed drawings under all Letters of Credit, whether or not
outstanding, including all outstanding Letter of Credit Borrowings.
"LETTER OF CREDIT RELATED DOCUMENT" means the Letters of Credit, the
Letter of Credit Applications, the Letter of Credit Amendment Applications and
any other document relating to any Letter of Credit, including any of the LC
Issuer's standard form documents for letter of credit Issuance.
"LEVEL I DAY" shall mean a day on which there is in effect a Xxxxx'x
Rating of Baa2 or better and an S&P Rating of BBB or better.
"LEVEL II DAY" shall mean a day which is not a Level I Day and on
which there is in effect a Xxxxx'x Rating of Baa3 or better and an S&P Rating of
BBB- or better.
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"LEVEL III DAY" shall mean a day which is not a Level I Day or a
Level II Day and on which there is in effect a Xxxxx'x Rating of Ba1 or better
and an S&P Rating of BB+ or better.
"LEVEL IV DAY" shall mean a day which is not a Level I Day, a Level
II Day or a Level III Day and on which there is in effect a Xxxxx'x Rating of
Ba2 or better and an S&P Rating of BB or better.
"LEVEL V DAY" shall mean a day which is not a Level I Day, a Level II
Day, a Level III Day or a Level IV Day.
"LIBO-RATE" for any day, as used herein, shall mean with respect to
each proposed LIBOR-based Loan a rate of interest (which shall be the same for
each day in the applicable Interest Period) equal to the rate of interest
determined in good faith by the Administrative Agent in accordance with its
usual procedures from the Reuters Screen LIBO page (which determination shall be
conclusive absent manifest error) to be the average of the rates per annum for
deposits in Dollars offered to the leading banks in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the first
day of such Interest Period for delivery on the first day of such Interest
Period in amounts comparable to the amount of the LIBOR-based Loan to be funded
and having maturities comparable to such Interest Period.
"LIBOR AUCTION" shall mean a solicitation of Competitive Bid Loan
Quotes setting forth LIBOR-based Margins based on the LIBO-Rate pursuant to
Section 2.03 hereof.
"LIBOR-BASED LOANS" shall mean Competitive Bid Loans the interest
rates of which are determined on the basis of the LIBO-Rate pursuant to a LIBOR
Auction.
"LIEN" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"LOAN" shall mean any loan or advance by a Lender under this
Agreement, whether a Revolving Credit Loan, a Competitive Bid Loan or a
Swingline Advance and "Loans" shall mean all Revolving Credit Loans, Competitive
Bid Loans and Swingline Advances made by Lenders under this Agreement.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty Agreements, the Pledge Agreement, the Letter of Credit Related
Documents and the Transfer Supplements, and all other agreements and instruments
extending or renewing any indebtedness, obligation or liability arising under
any of the foregoing, and any certificate or instrument delivered by any
Borrower or any Guarantor in connection herewith or therewith, in each case as
the same may be amended, modified or supplemented from time to time hereafter.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, properties, assets or condition (financial or otherwise)
of the Company and its Subsidiaries taken as a whole.
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"MATERIAL DOMESTIC SUBSIDIARY" shall mean each Significant Subsidiary
of the Company (other than Special Purpose Subsidiaries) that is organized under
the laws of one of the States of the United States.
"XXXXX'X" shall mean Xxxxx'x Investor's Services, Inc., or any
successor thereto.
"XXXXX'X RATING" shall mean the rating assigned to the Company's
senior unsecured long term debt by Xxxxx'x, or in the event the Company has no
Xxxxx'x-rated senior unsecured long-term debt outstanding, the "hypothetical
senior long-term debt rating" most recently assigned to the Company by Xxxxx'x,
which assignment shall have been made not more than fifteen months prior to the
time in question and not more than ninety (90) days after a request therefor by
the Required Lenders pursuant to Section 5.14 hereof.
"NONEXTENDING LENDER" shall have the meaning set forth in Section
2.18 hereof.
"NOTE" or "NOTES" shall mean the Revolving Credit Note(s), the
Swingline Advance Note(s) or the Competitive Bid Note(s), as the case may be, of
the Borrowers executed and delivered under this Agreement, together with all
extensions, renewals, refinancings or refundings of any thereof in whole or
part.
"NOTIONAL EURO-RATE FUNDING OFFICE" shall have the meaning given to
that term in Section 2.17(a) hereof.
"OBLIGATIONS" shall mean all indebtedness, obligations and
liabilities of each Borrower to any Lender or any Agent, the Swingline Lender,
or the LC Issuer from time to time arising under or in connection with or
related to or evidenced by or secured by this Agreement or any other Loan
Document, and all extensions or renewals thereof, whether such indebtedness,
obligations or liabilities are direct or indirect, otherwise secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising. Without
limitation of the foregoing, such indebtedness, obligations and liabilities
include the principal amount of Loans, Letter of Credit Obligations, interest,
fees, indemnities or expenses under or in connection with this Agreement or any
other Loan Document, and all extensions and renewals thereof, whether or not
such Loans were made in compliance with the terms and conditions of this
Agreement or in excess of the obligation of the Lenders to lend. Obligations
shall remain Obligations notwithstanding any assignment or transfer or any
subsequent assignment or transfer of any of the Obligations or any interest
therein.
"OFFICE," when used in connection with the Administrative Agent,
shall mean its office located at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, or at such other office or offices of the Administrative Agent
or any branch, subsidiary or affiliate thereof as may be designated in writing
from time to time by the Administrative Agent to the Company.
"OFFSHORE CURRENCIES" shall mean any lawful currency constituting a
eurocurrency (other than Dollars), that in the opinion of the LC Issuer is
freely traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars.
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"OPTION" shall mean the Base Rate Option, the CD Rate Option or the
Euro-Rate Option, as the case may be.
"OTHER CREDIT AGREEMENT" shall mean the Amended and Restated Short
Term Revolving Credit Agreement dated as of December 1, 1999 among Xxxxxx
Xxxxxxx Corporation (or any successor thereto), the guarantors signatory
thereto, the lenders signatory thereto, Bank of America, N.A., as administrative
agent, and other agents party thereto, as the same may be amended, modified or
supplemented from time to time.
"PARENT" shall mean Xxxxxx Xxxxxxx Ltd., a newly formed Bermuda
corporation.
"PARTICIPANTS" shall have the meaning set forth in Section 10.14(b)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established
under Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"PENSION PLAN" shall mean a single employer plan as defined in
Section 4001(a)(15) of ERISA or an individual account plan which is subject to
the funding standards of Section 302 of ERISA with respect to which the Company,
any of its Significant Subsidiaries, or members of their respective Controlled
Groups, at any relevant time have some liability or obligation to contribute or
pay benefits and which relates to current or former employees of the Company,
any of its Significant Subsidiaries or any member of their respective Controlled
Groups.
"PERFORMANCE LETTER OF CREDIT" means a Letter of Credit that, as
reasonably determined by the LC Issuer, assures that a Borrower or a Subsidiary
thereof will fulfill a contractual nonfinancial obligation.
"PERFORMANCE LETTER OF CREDIT SUBLIMIT" shall mean $270,000,000.
"PERMITTED LIENS" shall mean (a) pledges or deposits by the Company
or any of its Subsidiaries under workers' compensation laws, unemployment
insurance laws, social security laws, or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the payment
of Indebtedness of the Company or any of its Subsidiaries), or leases to which
the Company or any of its Subsidiaries is a party, or deposits to secure public
or statutory obligations of the Company or any of its Subsidiaries or deposits
of cash or U.S. governmental bonds to secure surety, appeal, performance or
other similar bonds to which the Company or any of its Subsidiaries is a party,
or deposits as security for contested taxes or import duties or for the payment
of rent; (b) Liens imposed by law such as carriers', warehousemen's,
materialmen's and mechanics' or other similar liens, or Liens arising out of
judgments or awards against the Company or any of its Subsidiaries with respect
to which the Company or any of its Subsidiaries at the time shall currently be
prosecuting an appeal or proceedings for review; (c) Liens for taxes,
assessments or governmental charges or levies not yet subject to penalties for
nonpayment and Liens for taxes, assessments or governmental charges or levies
the payment of which is being contested as permitted by Section 5.03 hereof; (d)
survey exceptions, encumbrances, easements or reservations of, or rights of
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others for rights of way, highways and railroad crossings, sewers, electric
lines, telephone and telegraph lines and other similar purposes, or zoning or
other restrictions as to the use of real property; all of which Liens described
in clause (d) hereof do not in the aggregate materially detract from the value
of the properties to which they relate or materially impair their use in the
operation of the business of the Company and its Subsidiaries taken as a whole;
(e) Liens (i) in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or (ii) in favor of any other country,
or any political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute; (f) Liens made in favor of
any customer arising in the ordinary course of business of the Company or any
Subsidiary thereof in respect of payments made by or on behalf of such customer
for goods produced or services rendered to such customer; (g) a security
interest granted to the Administrative Agent, for the benefit of the
Administrative Agent, the LC Issuer and the Lenders, in Cash Collateral; and (h)
Liens granted pursuant to the Pledge Agreement.
"PERSON" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, Governmental
Authority or any other entity.
"PORTION" shall mean the Base Rate Portion, the CD Rate Portion or
the Euro-Rate Portion, as the case may be.
"POTENTIAL DEFAULT" shall mean any event or condition which with
notice or passage of time, or any combination of the foregoing, would constitute
an Event of Default.
"PLEDGE AGREEMENT" shall mean the pledge agreement in the form of
Exhibit J.
"PREVIOUS CREDIT AGREEMENT" shall have the meaning set forth in the
Recitals hereto.
"PREVIOUS GUARANTOR" shall have the meaning set forth in the Recitals
hereto.
"PRIME RATE" as used herein, shall mean for any day the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." (The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"PRINCIPAL FOREIGN AFFILIATES" shall have the meaning set forth in
Section 6.09 hereof.
"PROJECT" shall mean any municipal solid waste project or any other
project the assets of which are financed on a limited recourse basis.
"PRO RATA" shall have the meaning set forth in Section 2.13 hereof.
"PURCHASING LENDER" shall have the meaning set forth in Section
10.14(c) hereof.
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"REGISTER" shall have the meaning set forth in Section 10.14(d)
hereof.
"REGULAR PAYMENT DATE" shall mean the last Business Day of each
March, June, September and December after the date hereof.
"RELEVANT DATE" shall have the meaning set forth in Section 1.03(a)
hereof.
"REORGANIZATION" shall have the meaning set forth in the Recitals
hereto.
"REPLACEMENT LENDER" shall have the meaning set forth in Section 2.18
hereof.
"REPORTABLE EVENT" means an event described in Section 4043 of ERISA
or in the regulations thereunder with respect to which the 30-day notice is not
waived or an event described in Section 4043 or in the regulations thereunder
with respect to which the 30-day notice has been waived and which involves a
liability of $1,000,000 or more or a material plan or a receipt of a notice of
withdrawal liabilities pursuant to Section 4202 of ERISA. For purposes of this
definition a material plan is a plan in which benefit liabilities exceed assets
on a termination basis based on PBGC assumptions by $1,000,000.
"REQUIRED LENDERS" shall mean, at any time prior to the termination
or expiration of the Commitments, Lenders which have Commitments constituting,
in the aggregate, more than 50% of the total Commitments of all the Lenders at
such time and shall mean, at any time thereafter, Lenders which have outstanding
Loans, Swingline Advance Participating Interests and Letter of Credit
Obligations (without duplication) constituting, in the aggregate, more than 50%
of all Loans, Swingline Advance Participating Interests and Letter of Credit
Obligations (without duplication) outstanding at such time.
"REQUIREMENTS OF LAW" means all applicable federal, state, and local
laws, statutes, rules, regulations, codes, ordinances, orders, decrees,
directives, permits, licenses and judgments relating to Environmental Matters in
effect from time to time.
"RESPONSIBLE OFFICER" of any Credit Party shall mean its Chief
Executive Officer, its Chief Financial Officer, its Executive Vice President,
any Senior Vice President, any Vice President, the Treasurer or one of its
Assistant Treasurers.
"REVOLVING CREDIT COMMITMENT" shall have the meaning set forth in
Section 2.01(a) hereof.
"REVOLVING CREDIT COMMITTED AMOUNT" shall have the meaning set forth
in Section 2.01(a) hereof.
"REVOLVING CREDIT LOANS" shall have the meaning set forth in Section
2.01(a) hereof.
"REVOLVING CREDIT MATURITY DATE" shall mean February 12, 2003, as
such date may be extended pursuant to Section 2.18 hereof.
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"REVOLVING CREDIT NOTE" shall mean the promissory note of the
Borrowers executed and delivered under Section 2.01(c) hereof, any promissory
note issued in substitution therefor pursuant to Sections 2.17(b) or 10.14(c)
hereof, together with all extensions, renewals, refinancings or refundings
thereof in whole or part.
"XXXXXXX FACILITY" means the waste-to-energy facility located in the
Village of Xxxxxxx, Illinois.
"ROBBINS SUBSIDIARIES" shall mean, collectively, RRRP Illinois, Inc.,
RRRP Robbins, Inc. RRRP Midwest, LLC and Xxxxxxx Resources Recovery Partners,
L.P. and their respective successors and assigns.
"S&P" shall mean Standard & Poor's Rating Services, or any successor
thereto.
"S&P RATING" shall mean the rating assigned to the Company's senior
unsecured long term debt by S&P, or in the event the Company has no S&P-rated
senior unsecured long-term debt outstanding, the "issuer credit rating" most
recently assigned to the Company by S&P, which assignment shall have been made
not more than fifteen months prior to the time in question and not more than
ninety (90) days after a request therefor by the Required Lenders pursuant to
Section 5.14 hereof.
"SIGNIFICANT SUBSIDIARY" shall mean (a) each Special Purpose
Subsidiary and (b) each other Subsidiary of the Company which in the most recent
fiscal year of the Company accounted for more than 10% of the consolidated
assets of the Company and its Subsidiaries or which accounted for more than 10%
of the consolidated income of the Company and its Subsidiaries for each of the
most recent three fiscal years of the Company; PROVIDED, HOWEVER, that with
respect to Subsidiaries created or acquired after the date hereof, if thereafter
such entity, in a fiscal year, accounts for more than 10% of the consolidated
assets of the Company and its Subsidiaries or accounts for more than 10% of the
consolidated income of the Company and its Subsidiaries in such fiscal year, it
shall be deemed to be a Significant Subsidiary for such fiscal year.
"SPECIAL PURPOSE SUBSIDIARY" shall mean a Subsidiary of the Company
formed with the express and sole purpose of, and which is engaged solely in the
business of, constructing or owning, leasing or operating a specific Project,
and with respect to which Subsidiary, neither the Company nor any of its other
Subsidiaries is obligated (except as guarantor of completion or performance) to
pay any Indebtedness (including lease obligations) incurred to construct, own,
lease or operate any such Project or any other Indebtedness of such Subsidiary;
PROVIDED, HOWEVER, that each Xxxxxxx Subsidiary shall be a Special Purpose
Subsidiary notwithstanding the obligations of Xxxxxx Xxxxxxx Corporation (or any
successor thereto) under the Exit Funding Agreement, so long as such companies
otherwise qualify under this definition.
"SPOT RATE" for a currency means the rate quoted (expressed as a
decimal, rounded to the fourth decimal place) to the Administrative Agent as the
spot rate for the purchase of such currency with another currency through the FX
Trading Office of Bank of America at approximately 12:00 noon (London time) on
the date two Business Days prior to the date as of which the foreign exchange
settlement is made.
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"STANDARD NOTICE" shall mean an irrevocable notice substantially in
the form of Exhibit L provided to the Administrative Agent on a Business Day
which is:
(a) At least two Business Day in advance in the case of
selection of, conversion to or renewal of the CD Rate Option or
prepayment of CD Rate Portion;
(b) At least three Business Days in advance in the case
of selection of, conversion to or renewal of the Euro-Rate Option or
prepayment of any Euro-Rate Portion;
(c) On the same Business Day in the case of selection of,
conversion to or renewal of the Base Rate Option or prepayment of
Base Rate Portion; and
(d) On the same Business Day in the case of Swingline
Advances.
Standard Notice must be provided no later than 9:00 a.m., Los Angeles time, on
the last day permitted for such notice in the case of notices given pursuant to
clauses (c) and (d) above, and no later than 10:00 a.m., Los Angeles time, on
the last day permitted for such notice in the case of notices given pursuant to
clauses (a) and (b) above.
"STOCK PAYMENT" by any Person shall mean any dividend, distribution
or payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument; but in no event shall such term include payments made
by the Company to Foreign Holdings and/or Parent to enable Parent to pay
dividends on shares of its stock issued upon conversion of Convertible
Subordinated Notes.
"SUBSIDIARY" of a Person at any time shall mean any corporation of
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may suspend or
dilute the voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and any trust of which a majority of the beneficial
interest is at such time owned directly or indirectly, beneficially or of
record, by such Person or one or more Subsidiaries of such Person.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the agreement of a
Subsidiary in the form of Exhibit H hereof whereby it acknowledges to become a
party hereto as a Guarantor under Section 9 hereof.
"SWINGLINE ADVANCE" shall have the meaning set forth in Section 2.05
hereof.
"SWINGLINE ADVANCE COMMITMENT" shall have the meaning set forth in
Section 2.05 hereof.
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"SWINGLINE ADVANCE COMMITTED AMOUNT" shall have the meaning set forth
in Section 2.05 hereof.
"SWINGLINE ADVANCE MATURITY DATE" shall have the meaning set forth in
Section 2.05 hereof.
"SWINGLINE ADVANCE PARTICIPATING INTEREST" shall have the meaning set
forth in Section 2.05 hereof.
"SWINGLINE LENDER" shall mean Bank of America and any Lender which is
appointed as a successor Administrative Agent pursuant to Section 8.10 hereof.
"SYNDICATION AGENT" shall mean First Union National Bank, in its
capacity as Syndication Agent hereunder.
"TAXES" shall have the meaning set forth in Section 2.16 hereof.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean at any time, the
aggregate Revolving Credit Committed Amounts of all Lenders hereunder at such
time.
"TRANSFER EFFECTIVE DATE" shall have the meaning set forth in the
applicable Transfer Supplement.
"TRANSFER SUPPLEMENT" shall have the meaning set forth in Section
10.14(c) hereof.
"TRUST PREFERRED" shall mean 9% $175,000,000 Trust Preferred
Securities of the Company (as successor to Xxxxxx Xxxxxxx Corporation) issued on
or about January 13, 1999.
"UTILIZATION FEE" is set forth in the definition of "APPLICABLE
MARGIN."
"VOTING STOCK" shall mean, with respect to any corporation, the
capital stock of such corporation having the power to vote for a majority of the
board of directors of such corporation under ordinary circumstances.
SECTION 1.02. CONSTRUCTION. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by any Agent
or by any Lender include reasonable and good faith estimates by such Agent or by
such Lender (in the case of quantitative determinations) and good faith beliefs
by such Agent or by such Lender (in the case of qualitative determinations). The
words "hereof," "herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The section and other headings contained in this Agreement and the
Table of Contents preceding this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
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interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
SECTION 1.03. ACCOUNTING PRINCIPLES. (a) As used herein, "GAAP"
shall mean generally accepted accounting principles as such principles shall be
in effect at the Relevant Date, subject to the provisions of this Section 1.03.
As used herein, "Relevant Date" shall mean the date a relevant computation or
determination is to be made or the date of relevant financial statements, as the
case may be.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
(c) If any change in GAAP after the date of this Agreement is or
shall be required to be applied to transactions then or thereafter in existence,
and a violation of one or more provisions of this Agreement shall have occurred
or in the opinion of the Company would likely occur which would not have
occurred or be likely to occur if no change in accounting principles had taken
place,
(i) The parties agree that such violation shall not be
considered to constitute an Event of Default or a Potential Default
for a period of 60 days from the date the Company notifies the
Administrative Agent of the application of this Section 1.03 (c);
(ii) The parties agree in such event to negotiate in good
faith an amendment of this Agreement which shall approximate to the
extent possible the financial effect of the original financial
covenants after taking into account such change in GAAP; and
(iii) If the parties are unable to negotiate such an
amendment within 60 days, the Borrowers shall have the option of
prepaying the Loans (subject to Section 2.14(b) hereof). If the
Borrowers do not exercise such option within said period, then as
used in this Agreement, "GAAP" shall mean generally accepted
accounting principles in effect at the Relevant Date.
(d) If any change in GAAP after the date of this Agreement is
required to be applied to transactions or conditions then or thereafter in
existence, and the Administrative Agent shall assert that the effect of such
change is or shall likely be to distort materially the effect of any of the
definitions of financial terms in Article I hereof or any of the covenants of
any Borrower in Article VI hereof (the "FINANCIAL PROVISIONS"), so that the
intended financial effect of any of the Financial Provisions will not in fact be
accomplished,
(i) The Administrative Agent shall notify the Company of
such assertion, specifying the change in GAAP which is objected to,
and until otherwise determined as provided below, the specified
change in GAAP shall not be made by the Company in its financial
statements for the purpose of applying the Financial Provisions; and
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(ii) The parties shall follow the procedures set forth in
paragraph (ii) and the first sentence of paragraph (iii) of
subsection (c) of this Section. If the parties are unable to agree on
an amendment as provided in said paragraph (ii) and if the Borrowers
do not exercise the option set forth in the first sentence of said
paragraph (iii) within the specified period, then as used in this
Agreement "GAAP" shall mean generally accepted accounting principles
in effect at the Relevant Date, except that the specified change in
GAAP which is objected to by the Administrative Agent shall not be
made in applying the Financial Provisions.
(e) All expenses of compliance with this Section 1.03 shall be paid
for by the Borrowers upon demand, and each Borrower shall be jointly and
severally obligated to pay such expenses.
SECTION 1.04. OPTIONAL INCREASE OF THE COMMITMENTS. (a) The Company
may from time to time increase the Total Revolving Credit Commitment by the
addition of one or more new Lenders consented to by the Administrative Agent and
the LC Issuer or by the agreement of any existing Lender (a "PROPOSED COMBINED
COMMITMENTS INCREASE") in the manner set forth below; provided that (i) the then
Total Revolving Credit Commitment plus the Proposed Combined Commitments
Increase shall not be greater than $300,000,000; (ii) immediately prior to and
after giving effect to the Proposed Combined Commitments Increase no event has
occurred and is continuing that constitutes an Event of Default or Potential
Default; (iii) the Borrowers shall be jointly and severally obligated to pay any
costs payable under Section 2.14(b) if and to the extent any Loans are prepaid
on the effective date of such increase (the "INCREASE DATE") such costs shall be
paid; and (iv) the Company may not request the increase of the Total Revolving
Credit Commitment hereunder once the Borrowers have reduced such Commitment
under Section 2.02(c) hereof.
(b) The Total Revolving Credit Commitment shall be increased by the
Proposed Combined Commitments Increase on the Increase Date provided (i) each
such new Lender shall execute and deliver to the Administrative Agent the
Joinder to Revolving Credit Agreement (and by such execution and delivery, each
such new Lender shall be deemed to have agreed with the matters set forth in
this Agreement) and/or such existing Lender shall execute and deliver the
Commitment Increase Supplement in the form of Exhibit K and (ii) the
Administrative Agent shall have received on or before the Increase Date
certified copies of the resolutions of the Board of Directors of each Borrower
approving such increase of the Total Revolving Credit Commitment, and of all
documents evidencing other necessary corporate action, if any, with respect to
such increase. Upon satisfaction of the foregoing conditions, such new Lender
shall become a Lender hereunder and/or such existing Lender's Commitment shall
be increased, and the Administrative Agent shall, promptly following the
effective date thereof, provide to the Company and the Lenders a revised Pro
Rata shares giving effect thereto. Each Borrower agrees that it shall execute
and deliver upon request of such new or existing Lender, one or more Notes
evidencing that such new or existing Lender's Pro Rata share.
(c) If, after giving effect to the Proposed Combined Commitments
Increase, any Lender's revised Pro Rata share of the Total Revolving Credit
Commitment is different than its share of Obligations, the Obligations shall be
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reallocated among the Lenders as follows. On the Increase Date, the Borrowers
shall be deemed to have prepaid all outstanding Revolving Credit Loans in
accordance with Section 2.11 and reborrowed all Revolving Credit Loans in
accordance with Section 2.01 from all Lenders ratably in accordance with their
revised Pro Rata shares. Each Lender having a decreased Pro Rata share (a
"SELLING LENDER") agrees to sell and assign to each other Lender (each a "BUYING
LENDER"), and each Buying Lender hereby agrees to ratably purchase and assume,
without recourse, from each Selling Lender, a ratable portion of each Selling
Lender's Letter of Credit Obligations and Swingline Advance Participating
Interest such that, after giving effect to such assignments, each Lender's share
of all Obligations (except Competitive Bid Loans) equals its revised Pro Rata
share. On the Increase Date, the Administrative Agent shall distribute to each
Selling Lender an amount equal to the difference between its Revolving Credit
Loans so prepaid and the new Revolving Credit Loans deemed to have been made by
it (plus interest payable hereunder). Such payments shall be deemed to be a
payment of the Revolving Credit Loans by the Borrowers on the date such payment
is received. The Selling Lender acknowledges and agrees to the maters set forth
in Section 6(b) of the Transfer Supplement as to the Letter of Credit
Obligations and Swingline Advance Participating Interest it has acquired.
Interest and fees accruing on the Letter of Credit Obligations and Swingline
Advance Participating Interest for the period prior to the Increase Date shall
be for the account of each Selling Lender, and interest and fees accruing on the
Letter of Credit Obligations and Swingline Advance Participating Interest for
the period from and after the Increase Date shall be for the account of each
Buying Lender.
SECTION 1.05. UTILIZATION OF COMMITMENTS IN FOREIGN CURRENCIES. The
Administrative Agent will determine the Dollar Equivalent with respect to any
(i) borrowing of Eurocurrency Loans as of the requested borrowing date, (ii)
Letter of Credit denominated in an Offshore Currency as of the Issuance Date,
and (iii) outstanding Eurocurrency Currency Loans and Letter of Credit
Obligations as of the last Business Day of each month provided, however, that
(i) upon the occurrence and during the continuation of any Potential Default or
Event of Default or (ii) for the purpose of calculating fees payable under this
Agreement or for other purposes, such determination shall be made as often as
the Administrative Agent or the Required Lenders may reasonably deem necessary.
ARTICLE II
THE CREDITS
SECTION 2.01. REVOLVING CREDIT LOANS. (a) REVOLVING CREDIT
COMMITMENTS. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender, severally and not
jointly, agrees (such agreement being herein called such Lender's "REVOLVING
CREDIT COMMITMENT") to make committed loans in Dollars (the "REVOLVING CREDIT
LOANS") to each and any Borrower from time to time on or after the date hereof
and to but not including the Revolving Credit Maturity Date. A Lender shall have
no obligation to make any Revolving Credit Loan to the extent that, upon the
making of such Revolving Credit Loan, the sum of the aggregate principal amount
of (i) such Lender's outstanding Revolving Credit Loans, (ii) such Lender's Pro
Rata share of all outstanding Swingline Advances and (iii) such Lender's Pro
Rata share of the Dollar Equivalent of Letter of Credit Obligations would exceed
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such Lender's Revolving Credit Committed Amount. No Revolving Credit Loans shall
be made hereunder to the extent that such Revolving Credit Loans would cause the
Dollar Equivalent of the sum of (i) the aggregate outstanding principal amount
of all Loans outstanding hereunder and (ii) the Letter of Credit Obligations to
exceed the Total Revolving Credit Commitment. Each Lender's "Revolving Credit
Committed Amount" at any time shall be equal to the amount set forth as its
"Initial Revolving Credit Committed Amount" below its name on the signature
pages hereof, as such amount may have been reduced pursuant to Section 2.02(c)
hereof at such time, subject to adjustment as provided in Sections 1.05 and
10.17 hereof and subject to transfer to another Lender as provided in Section
10.14 hereof.
(b) NATURE OF CREDIT. Within the limits of time and amount set forth
in this Section 2.01, and subject to the provisions of this Agreement, each
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) REVOLVING CREDIT NOTES. To the extent so requested by any Lender
through the Administrative Agent, the joint and several obligation of each
Borrower to repay the unpaid principal amount of the Revolving Credit Loans made
to any Borrower by such Lender and to pay interest thereon shall be evidenced in
part by promissory notes of the Borrowers, one to such Lender, dated the date
hereof (the "REVOLVING CREDIT NOTES") in substantially the form attached hereto
as Exhibit A, with the blanks appropriately filled, payable to the order of such
Lender in a face amount equal to such Lender's Initial Revolving Credit
Committed Amount.
(d) MATURITY. To the extent not due and payable earlier, the
Revolving Credit Loans shall be due and payable on the Revolving Credit Maturity
Date.
SECTION 2.02. FEES; REDUCTION OF THE COMMITTED AMOUNTS. (a) FACILITY
FEE. The Company shall pay to the Administrative Agent for the account of each
Lender a fee (the "FACILITY FEE") for each day from and including the date
hereof and to but not including the Revolving Credit Maturity Date, on the
amount of such Lender's Revolving Credit Committed Amount (whether used or
unused) on such day (based upon a year of 365 or 366 days and actual days
elapsed) at a rate per annum equal to the rate in effect for such day determined
in accordance with the pricing grid set forth in the definition of "Applicable
Margin". Facility Fees shall be due and payable for the preceding period for
which such fees have not been paid on each Regular Payment Date and on the
Revolving Credit Maturity Date.
(b) OTHER FEES. The Company shall pay to each Agent an agency fee and
other fees at the times and in the amounts previously agreed upon among the
Agents and the Company.
(c) OPTIONAL REDUCTION OF THE REVOLVING CREDIT COMMITTED AMOUNTS. The
Company may at any time or from time to time reduce Pro Rata the Revolving
Credit Committed Amounts of the Lenders to an aggregate amount (which may be
zero) not less than the Dollar Equivalent of the sum of the unpaid principal
amount of the Revolving Credit Loans, Swingline Advances and Competitive Bid
Loans then outstanding plus the principal amount of all Revolving Credit Loans,
Swingline Advances and Competitive Bid Loans not yet made as to which notice has
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been given by the Company under Section 2.07 hereof plus all Letter of Credit
Obligations then outstanding plus the stated amount of all Letters of Credit not
yet issued as to which notice has been given by the Company under Section 2.06
hereof. Any reduction of the Revolving Credit Committed Amounts shall be in an
aggregate amount not less than $10,000,000 which is an integral multiple of
$1,000,000. Reduction of the Revolving Credit Committed Amounts shall be made by
providing not less than two Business Days' notice (which notice shall be
irrevocable) to such effect to the Administrative Agent. After the date
specified in such notice the Facility Fee shall be calculated upon the Revolving
Credit Committed Amounts as so reduced. The Administrative Agent will promptly
send copies of such notice to the Lenders.
(d) BID FEES. In consideration of the Administrative Agent's
management of bidding procedures for Competitive Bid Loans, the Company and each
Borrowing Subsidiary (if any) for whose account such Competitive Bid Loan was
requested, jointly and severally, shall pay to the Administrative Agent for the
Administrative Agent's own account on the date of each LIBOR Auction, CD Rate
Auction, Base Rate Auction and Absolute Rate Auction, bid agency fees in the
amount of $150 for each Competitive Bid Loan Quote submitted by each Lender, but
in no event less than $450 per auction.
(e) LETTER OF CREDIT FEE. The Company and each Borrowing Subsidiary
(if any) for whose account such Letter of Credit was issued, jointly and
severally, shall pay to the Administrative Agent for Pro Rata distribution to
each Lender a fee in Dollars in respect of each Letter of Credit Issued
hereunder (the "LETTER OF CREDIT FEE") for the period from and including the
date of Issuance of such Letter of Credit to but not including the termination
of such Letter of Credit, computed at a rate per annum equal to (i) in the case
of Financial Letters of Credit, the Applicable Margin for the Euro-Rate Option,
and (ii) in the case of Performance Letters of Credit, three-fourths (3/4) of
the Applicable Margin for the Euro-Rate Option, as in effect from time to time
on the Dollar Equivalent of the stated amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable in arrears on each Regular
Payment Date and upon the first day on or after the termination of the Total
Revolving Credit Commitment upon which no Letters of Credit remain outstanding.
(f) FRONTING FEE. The Company and each Borrowing Subsidiary (if any)
for whose account such Letter of Credit was issued, jointly and severally, shall
pay to the LC Issuer, for its account, a fronting fee in Dollars in respect of
each Letter of Credit issued by the LC Issuer hereunder for the period from and
including the date of Issuance of such Letter of Credit to but not including the
termination of such Letter of Credit computed at a rate of 0.10% per annum on
the Dollar Equivalent of the stated amount of such Letter of Credit. Such fee
shall be due and payable in the same manner as the Letter of Credit Fee.
(g) ADMINISTRATIVE CHARGE. The Company and each Borrowing Subsidiary
(if any) for whose account such Letter of Credit was issued, jointly and
severally, shall pay to the LC Issuer, upon each drawing under, Issuance of, or
amendment to, any Letter of Credit issued by the LC Issuer, such amount as shall
at the time of such event be the standard administrative charge which the LC
Issuer is generally imposing in connection with such occurrence with respect to
letters of credit.
SECTION 2.03. COMPETITIVE BID LOANS. (a) MAKING OF COMPETITIVE BID
LOANS. In addition to Revolving Credit Loans, the Company (acting on behalf of
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the applicable Borrower) may, as set forth in this Section 2.03, request the
Lenders to make offers to make one or more Competitive Bid Loans to each and any
Borrower. Each Lender may, but shall have no obligation to, make one or more
such offers and, subject to the terms and provisions hereof, the Company (acting
on behalf of this applicable Borrower) may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section 2.03. Competitive
Bid Loans may be Base Rate Loans, CD Rate Loans, Absolute Rate Loans or
LIBOR-based Loans (each a "TYPE" of Competitive Bid Loan) and, subject to
Section 2.03(r) hereof, may be in any freely available currency agreed upon by
the Company (acting on behalf of the applicable Borrower) and each Lender.
Competitive Bid Loans shall be due and payable on the earlier of the Competitive
Bid Expiration Date and the applicable Competitive Bid Loan Maturity Date. After
giving effect to any borrowing of Competitive Bid Loans, the Dollar Equivalent
of the sum of the aggregate principal amount of all Loans outstanding hereunder
and the Letter of Credit Obligations shall not exceed the Total Revolving Credit
Commitment at any time; PROVIDED, HOWEVER, that the outstanding Competitive Bid
Loans made by any Lender may exceed its Revolving Credit Committed Amount. The
Competitive Bid Loans shall be deemed to utilize the Total Revolving Credit
Commitment by an amount equal to the Dollar Equivalent of the aggregate
outstanding principal amount thereof.
(b) COMPETITIVE BID LOAN QUOTE REQUESTS. When a Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.03, the
Company (acting on behalf of the applicable Borrower) shall transmit to the
Administrative Agent by telecopy, at its Office, notice (a "COMPETITIVE BID LOAN
QUOTE REQUEST") so as to be received no later than 10:00 a.m., Los Angeles time
on (x) the fourth Business Day prior to the date of borrowing proposed therein,
in the case of a LIBOR Auction, (y) the third Business Day prior to the date of
Borrowing proposed therein, in the case of a CD Rate Auction, or (z) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Base Rate Auction or Absolute Rate Auction (or, in any case, such other
time as the Company and Administrative Agent may agree). The Company (acting on
behalf of the applicable Borrower) may request offers to make Competitive Bid
Loans for different Interest Periods in a single notice; PROVIDED that the
request for each separate Interest Period shall be deemed to be a separate
Competitive Bid Loan Quote Request for a separate Competitive Bid Loan (all
Competitive Bid Loans proposed to be made at one time herein collectively
referred to as a "COMPETITIVE BID BORROWING"). Each such notice shall be
substantially in the form of Exhibit B hereto and in any case shall specify as
to each Competitive Bid Borrowing:
(i) The proposed date of such Competitive Bid Borrowing,
which shall be a Business Day;
(ii) The currency or currencies in which such Competitive
Borrowing is to be made;
(iii) The aggregate amount of such Competitive Bid
Borrowing which shall be a Dollar Equivalent of at least $5,000,000
(or a higher integral multiple of $1,000,000) (to the extent
practical in the case of Eurocurrency Loans), but shall not cause the
limits specified in Section 2.04 hereof to be violated;
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(iv) The duration of the initial Interest Period or
Periods applicable thereto, subject to the provisions of the
definition of "Interest Period" (including without limitation that no
such Interest Period shall end after the Competitive Bid Expiration
Date); and
(v) Whether the Competitive Bid Loan Quotes requested are
to set forth a LIBOR-based Margin, a Base Rate Margin, a CD Rate
Margin or an Absolute Rate.
The Company (acting on behalf of any Borrower) may not request
Competitive Bid Borrowings for more than three maturities nor request more than
one type of Competitive Bid Loan in a single Competitive Bid Borrowing. Unless
the Administrative Agent otherwise agrees, in its sole and absolute discretion,
the Company (acting on behalf of any Borrower) may not submit a request for a
Competitive Bid Borrowing if it has submitted another such request within the
prior two Business Days.
(c) INVITATION FOR COMPETITIVE BID LOAN QUOTES. The Administrative
Agent shall promptly transmit to the Lenders by telecopy notice of such
Competitive Bid Loan Request, which notice shall constitute an invitation by the
Company (acting on behalf of the applicable Borrower) to each Lender to submit
Competitive Bid Loan Quotes offering to make Competitive Bid Loans in accordance
with such Competitive Bid Loan Quote Request.
No Competitive Bid Loan Request shall be given if such request could
result in more than six Competitive Bid Loans being outstanding at any one time
unless otherwise permitted by the Administrative Agent.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BID LOAN QUOTES. (i) Each
Lender may submit one or more Competitive Bid Loan Quotes, each containing an
offer to make a Competitive Bid Loan in response to any Competitive Bid Loan
Quote Request. Each Competitive Bid Loan Quote must comply with the requirements
of this Section 2.03(d) and must be submitted to the Administrative Agent by
telecopy at its Office not later than (x) 8:00 a.m., Los Angeles time on the
third Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 7:00 a.m., Los Angeles time on the proposed date of
borrowing, in the case of a Base Rate Auction, CD Rate Auction or an Absolute
Rate Auction (or, in either case upon reasonable notice to the Lenders, such
other time and date as the Company and the Administrative Agent may agree);
PROVIDED that any Competitive Bid Loan Quote submitted by the Administrative
Agent (or an Affiliate of the Administrative Agent) in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent (or
such Affiliate) notifies the Company of the terms of the offer or offers
contained therein not later than (x) 7:30 a.m., Los Angeles time on the third
Business Day prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 6:30 a.m., Los Angeles time on the proposed date of borrowing, in
the case of a Base Rate Auction, CD Rate Auction or an Absolute Rate Auction.
Subject to Sections 2.14, 2.03(r) and 4.01 hereof, any Competitive Bid Loan
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the written instructions of the Company.
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(ii) Each Competitive Bid Loan Quote shall be substantially in the
form of Exhibit C hereto and shall in any case specify:
(A) The proposed date of borrowing, the proposed currency
and the Interest Period therefor;
(B) The principal amount of the Competitive Bid Loan for
which each such offer is being made, which principal amount shall be
a Dollar Equivalent of at least $5,000,000 or a higher integral
multiple of $1,000,000; PROVIDED that the aggregate principal amount
of all Competitive Bid Loans for which a Lender submits Competitive
Bid Loan Quotes (x) may be greater than, less than or equal to the
Revolving Credit Committed Amount of such Lender but (y) may not
exceed the principal amount of the Competitive Bid Borrowing for
which offers were requested in the related Competitive Bid Loan Quote
Request;
(C) In the case of a LIBOR Auction, the margin above (or,
if a negative margin is offered, below) the applicable LIBOR Rate
(the "LIBOR-BASED MARGIN") offered for each such Competitive Bid
Loan, expressed as a percentage (rounded upwards, if necessary, to
the nearest 1/10,000th of 1%) to be added to the applicable LIBOR
Rate;
(D) In the case of a CD Rate Auction, the margin above
(or, if a negative margin is offered, below) the applicable CD Rate
(the "CD RATE MARGIN") offered for each such Competitive Bid Loan
expressed as a percentage (rounded upward, if necessary, to the
nearest 1/10,000th of 1%) to be added to the applicable CD Rate;
(E) In the case of a Base Rate Auction, the margin above
(or, if a negative margin is offered, below) the applicable Base Rate
(the "BASE RATE MARGIN") offered for each such Competitive Bid Loan,
expressed as a percentage (rounded upward, if necessary, to the
nearest 1/10,000th of 1%) to be added to the applicable Base Rate;
(F) In the case of an Absolute Rate Auction, the rate of
interest per annum, calculated on the basis of a 360-day year
(rounded upwards, if necessary, to the nearest 1/10,000th of 1%) (the
"ABSOLUTE RATE") offered for each such Competitive Bid Loan; and
(G) The identity of the quoting Lender.
(iii) No Competitive Bid Loan Quote shall contain qualifying,
conditional or similar language or propose terms other than or in addition to
those set forth in the applicable Competitive Bid Loan Quote Request and, in
particular, no Competitive Bid Loan Quote may be conditioned upon acceptance by
the Company of all (or some specified minimum) of the principal amount of the
Competitive Bid Loan for which such Competitive Bid Loan Quote is being made,
and the Administrative Agent shall disregard any Competitive Bid Loan Quote that
contains such language or terms or conditions or that arrives at the
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Administrative Agent's Office after the time set forth for submission of
Competitive Bid Loan Quotes in Section 2.03(d)(i) hereof.
(e) NOTICE TO THE COMPANY. The Administrative Agent shall (x) in the
case of a LIBOR Auction, by 9:00 a.m., Los Angeles time on the day (which shall
be a Business Day) a Competitive Bid Loan Quote is submitted or (y) in the case
of a Base Rate Auction, CD Rate Auction or an Absolute Rate Auction, by 7:30
a.m., Los Angeles time on the day (which shall be a Business Day) a Competitive
Bid Loan Quote is submitted, notify the Company by telecopy of the terms (i) of
any Competitive Bid Loan Quote submitted by a Lender that is in accordance with
Section 2.03(d) hereof and (ii) of any Competitive Bid Loan Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Loan Quote
submitted by such Lender with respect to the same Competitive Bid Loan Quote
Request. Any such subsequent Competitive Bid Loan Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Loan Quote is
submitted solely to correct a manifest error in such former Competitive Bid Loan
Quote. The Administrative Agent's notice to the Company shall specify (A) the
aggregate principal amount of each Competitive Bid Loan for which Competitive
Bid Loan Quotes have been received for each Interest Period specified in the
related Competitive Bid Loan Quote Request, (B) the respective principal amounts
and LIBOR - based Margins, CD Rate Margins, Base Rate Margins or Absolute Rates,
as the case may be, so offered by each Lender, identifying the Lender that made
each Competitive Bid Loan Quote and (C) if the Administrative Agent is notifying
the Company of more than one Competitive Bid Loan Quote for a single Interest
Period, the Administrative Agent shall arrange the Competitive Bid Loan Quotes
in ascending yield order.
(f) ACCEPTANCE AND NOTICE BY THE COMPANY. Not later than (x) 9:30
a.m., Los Angeles time on the third Business Day prior to the proposed date of
the borrowing, in the case of a LIBOR Auction or (y) 8:00 a.m., Los Angeles
time on the proposed date of the borrowing, in the case of a Base Rate
Auction, CD Rate Auction or an Absolute Rate Auction (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the
Company and the Administrative Agent may agree), the Company (acting on behalf
of the applicable Borrower) shall notify the Administrative Agent by telecopy
at its Office of its acceptance or nonacceptance of the Competitive Bid Loan
Quotes so notified to it pursuant to Section 2.03(e) hereof (and the failure
of the Company to give such notice by such time shall constitute
nonacceptance) and the Administrative Agent shall promptly notify each
affected Lender in accordance with Section 2.03(h) hereof. In the case of
acceptance, such notice shall specify the aggregate principal amount of
Competitive Bid Loan Quotes for each Interest Period that are accepted. The
Company (acting on behalf of the applicable Borrower) may accept one or more
Competitive Bid Loan Quotes in whole or in part (PROVIDED that any Competitive
Bid Loan Quote accepted in part shall be a Dollar Equivalent of at least
$5,000,000 or a higher integral multiple of $1,000,000, to the extent
practical in the case of Eurocurrency Loans); PROVIDED that:
(i) The aggregate principal amount of each Competitive
Bid Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Loan Quote Request;
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(ii) The aggregate principal amount of each Competitive
Bid Borrowing shall be a Dollar Equivalent of at least $5,000,000 (or
a higher integral multiple of $1,000,000);
(iii) Acceptance of offers may be made only in ascending
yield order of LIBOR-based Margins, CD Rate Margins, Base Rate
Margins or Absolute Rates, as the case may be; and
(iv) The Company shall not accept any offer where the
Administrative Agent has advised the Company that such offer fails to
comply with Section 2.03(d)(ii) hereof or otherwise fails to comply
with the requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If Competitive Bid Loan
Quotes are made by two or more Lenders with the same LIBOR - based Margins, CD
Rate Margins, Base Rate Margins or Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which
Competitive Bid Loan Quotes are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such Competitive
Bid Loan Quotes are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in such multiples, not less than
$500,000, as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers. If two or more such Competitive Bid
Loan Quotes cannot be allocated evenly within the limits set forth in the
immediately preceding sentence, the Administrative Agent shall have discretion
to allocate a larger share of such Competitive Bid Loans to one or more of the
successful Lenders and in making such allocation shall use reasonable efforts to
take into account previous allocations of unequal shares to one or more of such
Lenders in connection with other Competitive Bid Loans. Determinations by the
Administrative Agent of the amounts of Competitive Bid Loans to be allocated to
each such Lender shall be conclusive absent manifest error.
(h) NOTICE TO LENDERS. On the date the Company (acting on behalf of
the applicable Borrower) notifies the Administrative Agent of its acceptance of
one or more of the offers made by any Lender or Lenders pursuant to Section
2.03(f) hereof, the Administrative Agent shall promptly notify each Lender which
has made an offer (i) of the aggregate amount of each Competitive Bid Borrowing
with respect to which the Company accepted one or more Competitive Bid Loan
Quotes and such Lender's share of such Competitive Bid Borrowing or (ii) that
the Company accepted no offers, such notice to be by telecopy.
(i) FUNDING OF COMPETITIVE BID LOANS. Any Lender whose offer to make
any Competitive Bid Loan has been accepted shall, not later than 11:00 a.m., Los
Angeles time, on the date specified in the related Competitive Bid Loan Quote
Request for the making of such Competitive Bid Loan, make the amount of such
Competitive Bid Loan available to the applicable Borrower at the Administrative
Agent's Office in immediately available funds. If any Lender makes a new
Competitive Bid Loan hereunder on a day on which the applicable Borrower is to
repay all or any part of an outstanding Competitive Bid Loan from such Lender,
such Lender shall apply the proceeds of its new Competitive Bid Loan to make
such repayment and only an amount equal to the difference (if any) between the
amount being borrowed and the amount being repaid shall be made available by
such Lender to the applicable Borrower as provided by this Section 2.03(i), or
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remitted by the applicable Borrower to the Administrative Agent as provided in
Section 2.14 hereof, as the case may be.
(j) COMPETITIVE BID LOAN MATURITY DATES. The principal amount of each
Competitive Bid Loan shall be due and payable on the last day of the applicable
Interest Period specified in the related Competitive Bid Loan Quote Request (the
"COMPETITIVE BID LOAN MATURITY DATE").
(k) COMPETITIVE BID LOAN INTEREST PAYMENT DATES. Interest on each
Competitive Bid Loan shall be due and payable on the Competitive Bid Loan
Maturity Date thereof and thereafter on demand at the rates provided for in
Section 2.03(o), and if any Interest Period is longer than 90 days, also on each
90th day of such Interest Period.
(1) COMPETITIVE BID RECORD. The Administrative Agent shall maintain a
record of the names and addresses of the relevant Borrowers and of the Lenders
that have made Competitive Bid Loans and the principal amount of the Competitive
Bid Loans owing to each Lender from time to time together with the Competitive
Bid Loan Maturity Dates and interest rates applicable to each such Competitive
Bid Loan, and other terms applicable thereto (the "COMPETITIVE BID RECORD"). The
entries in the Competitive Bid Record shall be prima facie evidence with respect
to the entries therein.
(m) REVIEW OF COMPETITIVE BID RECORD. The Competitive Bid Record
shall be available to the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(n) INTEREST RATES FOR COMPETITIVE BID LOANS. The outstanding
principal amount of each Competitive Bid Loan shall bear interest for each day
until due at the following rate or rates per annum:
(i) For each LIBOR-based Loan, a rate per annum (computed
on the basis of a year of 360 days and actual days elapsed) equal to
the LIBO Rate applicable to the Interest Period therefor plus the
LIBOR-based Margin quoted by the Lender making such Loan in the
related Competitive Bid Loan Quote submitted in accordance with
Section 2.03(d) hereof;
(ii) For each Base Rate Loan, a rate per annum (computed
on the basis of a year of 365 or 366 days and actual days elapsed)
equal to the Base Rate as in effect from time to time plus the Base
Rate Margin quoted by the Lender making such Loan in the related
Competitive Bid Loan Quote submitted in accordance with Section
2.03(d) hereof;
(iii) For each CD Rate Loan, a rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the
CD Rate applicable to the Interest Period therefor plus the CD Rate
Margin quoted by the Lender making such Loan in the related
Competitive Bid Loan Quote submitted in accordance with Section
2.03(d) hereof;
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(iv) For each Absolute Rate Loan, a rate per annum
(computed on the basis of a year of 360 days and actual days elapsed)
equal to the Absolute Rate quoted by the Lender making such Loan in
the related Competitive Bid Loan Quote submitted in accordance with
Section 2.03(d) hereof.
(o) INTEREST AFTER MATURITY FOR COMPETITIVE BID LOANS. After the
principal amount of any Competitive Bid Loan shall have become due (by
acceleration or otherwise), such Loan shall bear interest for each day until
paid (before and after judgment) (i) until the Competitive Bid Loan Maturity
Date of the applicable Interest Period of such Loan, at a rate per annum 2%
above the rate applicable to such Loan prior to such Competitive Bid Loan
Maturity Date and (ii) thereafter at a rate per annum determined in accordance
with Section 2.15(b).
(p) COMPETITIVE BID NOTES. To the extent so requested by any Lender
through the Administrative Agent, the joint and several obligation of each
Borrower to repay the unpaid principal amount of any Competitive Bid Loans made
by such Lender and to pay interest thereon shall be evidenced by a single
promissory note of the Borrowers (a "COMPETITIVE BID NOTE") in substantially the
form attached hereto as Exhibit D, with the blanks appropriately filled. The
Competitive Bid Note payable to such Lender shall be dated the Closing Date,
shall bear interest as provided in Section 2.03(n) or as otherwise provided
herein, and shall be payable to the order of the Lender named as payee therein
in a maximum face amount of the Total Revolving Credit Commitment. The
Competitive Bid Note for such Lender shall be delivered, duly executed by the
Borrowers to the Administrative Agent at or prior to the funding of the first
Competitive Bid Loan made by such Lender hereunder and the Administrative Agent
shall promptly forward such Competitive Bid Note to such Lender.
The outstanding principal amount of each Competitive Bid Loan
evidenced by each Competitive Bid Note from time to time, the Competitive Bid
Loan Maturity Date of such Competitive Bid Loan and the rate of interest and the
amount of accrued and unpaid interest payable in respect thereof shall be
determined from the records of the Administrative Agent, which shall be prima
facie evidence with respect to the entries therein. In the event the holder of a
Competitive Bid Note shall assign said Competitive Bid Note, it shall attach
thereto a schedule, which shall be verified by the Administrative Agent, setting
forth the then outstanding principal amount of each Competitive Bid Loan
evidenced by such Competitive Bid Note and the Competitive Bid Loan Maturity
Date thereof.
(q) PAYMENTS. All payments to be made by any Borrower in Dollars in
respect of any Competitive Bid Loan shall be payable at 11:00 a.m., Los Angeles
time, on the day when due without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature, except for payments to a Lender subject to a withholding
deduction under Section 2.16(c) hereof. Such payments shall be made to the
Administrative Agent at its Office in Dollars in funds immediately available at
such Office. Any payment received by the Administrative Agent or such Lender
after 11:00 a.m., Los Angeles time, on any day shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent shall
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distribute to the Lenders all such payments received by it from any Borrower as
promptly as practicable after receipt by the Administrative Agent. If and to the
extent that the Administrative Agent has not forwarded to any Lender such
Lender's share of any such payment on the same Business Day as such payment is
received (or deemed received) from any Borrower, the Administrative Agent shall
pay to such Lender interest on such amount at the Federal Funds Effective Rate
for each day until such payment is made. All payments of any Competitive Bid
Loans to be made in any currency other than Dollars shall be made by payment in
that currency in immediately available and freely transferable funds by the time
required by relevant local regulation and practice in the principal financial
center in the country of such currency for value on the applicable payment date
and such payment shall be due without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature, except for payments to a Lender subject to a withholding
deduction under Section 2.16(c) hereof.
(r) MULTIPLE CURRENCY OPTION. (i) Competitive Bid Loans may be made
in any currency requested by the Company (acting on behalf of the applicable
Borrower) and acceptable to the applicable Lender (each a "EUROCURRENCY LOAN").
If Eurocurrency Loans are to be made or are made, the amount of such Loans shall
be deemed to be, for purposes of determining utilization of Commitments and
other provisions of this Agreement, equal to the Dollar Equivalent thereof. If
the Dollar Equivalent of the sum of the all Eurocurrency Loans outstanding on
the day of any such determination plus the outstanding Loans made in Dollars
plus the Dollar Equivalent of all Letter of Credit Obligations exceeds the Total
Revolving Credit Commitment as then in effect, the Administrative Agent shall
immediately notify the Company and the Borrowers shall prepay on the Business
Day following such day Base Rate Loans and then, if necessary, Eurocurrency
Loans to the extent required so that such aggregate unpaid amount will not
exceed the Total Revolving Credit Commitment as then in effect; such prepayment
being subject however to Section 2.14(b) hereof. The Company may designate the
Loans to be prepaid by notice to the Administrative Agent before each such
prepayment.
(ii) CHANGES IN LAW RENDERING EUROCURRENCY LOANS UNLAWFUL. In
the event that any change in Law or guideline or interpretation or application
thereof should at any time make it unlawful for any Lender to make, maintain or
fund its Eurocurrency Loans, such Lender shall promptly notify the Company and
the Administrative Agent thereof. Thereupon, (i) the obligation of such Lender
to make its Eurocurrency Loans shall, upon the later of the effectiveness of
such event and the receipt of such notice, be suspended for the duration of such
illegality, and (ii) the applicable Borrower shall, on the applicable
Competitive Bid Loan Maturity Date with respect to such Eurocurrency Loans (or,
if later, on the last Competitive Bid Loan Maturity Date with respect to such
Eurocurrency Loans to end prior to the effectiveness of such change) or, in any
event, if such Lender so requests, on such earlier date as may be required by
the relevant Law, prepay or repay such Eurocurrency Loans.
SECTION 2.04. MAXIMUM AGGREGATE AMOUNT OF LOANS AND LETTERS OF
CREDIT. No Revolving Credit Loan, Competitive Bid Loan, Swingline Advance or
Letter of Credit shall be made, Issued or requested or permitted to remain
outstanding hereunder if the making, Issuance or maintenance of such Loan or
Letter of Credit would cause the Dollar Equivalent of the sum of the aggregate
amount of all Loans to the Borrowers outstanding hereunder and all Letter of
Credit Obligations to exceed the Total Revolving Credit Commitment as then in
effect.
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SECTION 2.05. SWINGLINE ADVANCES. (a) SWINGLINE ADVANCES. Subject to
the terms and conditions set forth in this Agreement and relying upon the
representations and warranties herein set forth, the Swingline Lender agrees
(such agreement being herein called the "SWINGLINE ADVANCE COMMITMENT") to make
loans in Dollars (the "SWINGLINE ADVANCES") to each and any Borrower from time
to time on or after the date hereof and to but not including the Revolving
Credit Maturity Date. The Swingline Lender shall have no obligation to make any
Swingline Advance to the extent that (i) the aggregate principal amount of
Swingline Advances at any time outstanding would exceed the Swingline Advance
Committed Amount at such time, or (ii) the Dollar Equivalent of the sum of the
principal amount of all outstanding Loans plus all Letter of Credit Obligations
would exceed the Total Revolving Credit Commitment, or (iii) an Event of Default
has occurred and is continuing, unless otherwise consented by the Required
Lenders.
The Swingline Lender's "Swingline Advance Committed Amount" shall be
equal to $10,000,000. Swingline Advances may be requested by the Company (acting
on behalf of the applicable Borrower) in any principal amount up to the
Swingline Advance Committed Amount. The Swingline Lender shall have no
obligation to make any Swingline Advance to the extent that doing so would cause
the aggregate amount of (i) its outstanding Revolving Credit Loans and (ii) its
Pro Rata share of (x) the Dollar Equivalent of the Letter of Credit Obligations
and (y) Swingline Advances to exceed its Revolving Credit Committed Amount.
Unless notified to the contrary by the Swingline Lender, borrowings
of the Swingline Advances may be made in a minimum amount of $100,000 and
multiples of $25,000 in excess thereof upon telephonic request made to the
Swingline Lender not later than 9:00 a.m., Los Angeles time, on the Business Day
of the requested borrowing. Promptly after receipt of such a request for
borrowing, the Swingline Lender shall obtain telephonic verification from the
Administrative Agent that, giving effect to such request, availability for
Swingline Advances will exist under Section 2.05(a) (and such verification shall
be promptly confirmed in writing by telecopier). Unless notified to the contrary
by the Swingline Lender, each repayment of a Swingline Advance shall be in an
amount which is an integral multiple of $25,000. If the Company (acting on
behalf of the applicable Borrower) instructs the Swingline Lender to debit its
demand deposit account at the Swingline Lender in the amount of any payment with
respect to a Swingline Advance, or the Swingline Lender otherwise receives
repayment, after 1:00 p.m., Los Angeles time, on a Business Day, such payment
shall be deemed received on the next Business Day. The Swingline Lender shall
promptly notify the Administrative Agent of the outstanding Swingline Advances
each time there is a change therein.
(b) NATURE OF CREDIT. Within the limits of time and amount set forth
in this Section 2.05, and subject to the provisions of this Agreement, the
Borrowers may borrow, repay and reborrow Swingline Advances hereunder.
(c) SWINGLINE ADVANCE NOTE. To the extent requested by the Swingline
Lender, the joint and several obligation of each Borrower to repay the unpaid
principal amount of the Swingline Advances made to any Borrower by the Swingline
Lender and to pay interest thereon shall be evidenced in part by a promissory
note of the Borrowers to the Swingline Lender, dated the Closing Date (the
"SWINGLINE ADVANCE NOTES") in substantially the form attached hereto as Exhibit
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E, with the blanks appropriately filled, payable to the order of the Swingline
Lender in a face amount equal to $10,000,000.
(d) MATURITY. To the extent not due and payable earlier, each
Swingline Advance shall be due and payable on the earlier of (i) the seventh day
after such Swingline Advance is made to any Borrower hereunder or (ii) the
Revolving Credit Maturity Date.
(e) INTEREST RATE. The applicable Borrower shall pay interest on the
unpaid principal amount of each Swingline Advance from the date of such Advance
until such principal amount is paid in full, payable on such dates, not more
frequently than monthly, as may be specified by the Swingline Lender and in any
event on the Revolving Credit Maturity Date, at a fluctuating interest rate per
annum equal to the Base Rate in effect from time to time; PROVIDED, HOWEVER,
that during any period in which an Event of Default has occurred and is
continuing (but only so long as such Event of Default is continuing), the
applicable Borrower shall pay interest on the unpaid principal amount of each
Swingline Advance made to it, payable from the date such Event of Default occurs
and upon written demand by the Swingline Lender to the Company, at the rate
determined in accordance with Section 2.15(b)(ii). The Swingline Lender shall be
responsible for invoicing the Company (as agent for the applicable Borrower) for
such interest.
(f) SWINGLINE ADVANCE PARTICIPATING INTERESTS. (i) GENERALLY. At the
discretion of the Swingline Lender at any time, on one Business Day's notice to
each Lender, the Swingline Lender may require each other Lender to purchase,
acquire, accept and assume from the Swingline Lender, without recourse to, or
representation or warranty by, the Swingline Lender, an undivided interest, in a
proportion equal to such Lender's Pro Rata share, in all of the Swingline
Lender's rights and obligations in, to or under the Swingline Lender's
outstanding Swingline Advances, together with accrued and unpaid interest
thereon (such interest of each Lender being referred to herein as a "SWINGLINE
ADVANCE PARTICIPATING INTEREST").
On the date that any Purchasing Lender becomes a party to this
Agreement in accordance with Section 10.14 hereof, Swingline Advance
Participating Interests in any outstanding Swingline Advances held by the Lender
from which such Purchasing Lender acquired its interest hereunder shall be
proportionately reallotted between such Purchasing Lender and such transferor
Lender (and, to the extent such transferor Lender is the Swingline Lender, the
Purchasing Lender shall be deemed to have acquired a Swingline Advance
Participating Interest from such transferor Lender to such extent).
(ii) OBLIGATIONS ABSOLUTE. Notwithstanding any other provision
hereof, each Lender hereby agrees that its obligation to participate in each
Swingline Advance issued in accordance herewith, and its obligation to make the
payments specified in Section 2.05(f)(iii) hereof, are each absolute,
irrevocable and unconditional and shall not be affected by any event, condition
or circumstance whatever. The failure of any Lender to make any such payment
shall not relieve any other Lender of its funding obligation hereunder on the
date due, but no Lender shall be responsible for the failure of any other Lender
to meet its funding obligations hereunder.
(iii) PAYMENT BY LENDERS ON ACCOUNT OF SWINGLINE ADVANCES. If
the Swingline Lender desires to sell Swingline Advance Participating Interests
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to the Lenders, the Swingline Lender will promptly notify the Administrative
Agent thereof (which notice may be by telephone), and the Administrative Agent
shall forthwith notify each Lender (which notice may be by telephone promptly
confirmed in writing) thereof. No later than the Administrative Agent's close of
business on the date such notice is given by the Administrative Agent (if such
notice is given by the Administrative Agent before 9:00 a.m., Los Angeles time
on such date), each such Lender will pay to the Administrative Agent, for the
account of the Swingline Lender, in immediately available funds, an amount equal
to such Lender's Pro Rata share of the outstanding principal amount of the
Swingline Advances and accrued and unpaid interest thereon. If and to the extent
that any Lender fails to make such payment to the Swingline Lender on such date,
such Lender shall pay such amount on demand, together with interest, for the
Swingline Lender's own account, for each day from and including the date of the
Swingline Lender's payment to and including the date of repayment to the
Swingline Lender (before and after judgment) following rates PER ANNUM: (x) for
each day from and including the date of such payment by the Swingline Lender to
and including the second Business Day thereafter, at the Federal Funds Effective
Rate for such day, and (y) for each day thereafter, at the rate applicable to
the Swingline Advances for such day.
(iv) DISTRIBUTIONS TO PARTICIPANTS. If, at any time, after the
Swingline Lender has made a Swingline Advance and has received from any Lender
such Lender's share of such Swingline Advance, and the Swingline Lender receives
any payment or makes any application of funds on account of such Swingline
Advance, the Swingline Lender will pay on the same day as received or deemed to
be received to the Administrative Agent, for the account of such Lender, such
Lender's ratable share of such payment.
(v) RESCISSION. If any amount received by the Swingline Lender
on account of any Swingline Advance or interest thereon shall be avoided,
rescinded or otherwise returned or paid over by the Swingline Lender for any
reason at any time, whether before or after the termination of this Agreement
(or the Swingline Lender believes in good faith that such avoidance, rescission,
return or payment is required, whether or not such matter has been adjudicated),
each such Lender will, promptly upon notice from the Administrative Agent or the
Swingline Lender, pay over to the Administrative Agent for the account of the
Swingline Lender its ratable share of such amount.
(vi) EQUALIZATION. If any Lender receives any payment or makes
any application on account of its Swingline Advance Participating Interest, such
Lender shall forthwith pay over to the Swingline Lender, in Dollars and in like
kind of funds received or applied by it the amount in excess of such Lender's
ratable share of the amount so received or applied.
SECTION 2.06. LETTERS OF CREDIT.
Section 2.06.01. LETTER OF CREDIT SUBLIMIT. (a) On the terms and
conditions set forth herein (i) the LC Issuer agrees, (A) from time to time on
any Business Day during the period from the Closing Date to the Revolving
Commitment Maturity Date to Issue Letters of Credit for the account of any one
or more of the Borrowers, and to amend or renew Letters of Credit previously
Issued by it, in accordance with Sections 2.06.02(c) and 2.06.02(d), and (B) to
honor properly drawn drafts under the Letters of Credit Issued by it; and (ii)
the Lenders severally agree to participate in Letters of Credit Issued for the
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account of any one or more of the Borrowers; PROVIDED that the LC Issuer shall
not be obligated to Issue, and no Lender shall be obligated to participate in,
any Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"ISSUANCE DATE") (1) the Dollar Equivalent of the sum of (i) all Letter of
Credit Obligations PLUS (ii) the principal amount of all outstanding Loans
exceeds the Total Revolving Credit Commitment or (2) if such Letter of Credit is
a Financial Letter of Credit, the Dollar Equivalent of all Letter of Credit
Obligations with respect to the Financial Letters of Credit exceed the Financial
Letter of Credit Sublimit or (3) if such Letter of Credit is a Performance
Letter of Credit, the Dollar Equivalent of all Letter of Credit Obligations with
respect to the Performance Letters of Credit exceed the Performance Letter of
Credit Sublimit or (4) the participation of any Lender in all Letter of Credit
Obligations (in the amount of the Dollar Equivalent thereof) and in the
Swingline Advances plus the Revolving Credit Loans made by such Lender exceed
such Lender's Revolving Credit Commitment. Letters of Credit may be Issued in
Dollars or Offshore Currencies. Within the foregoing limits, and subject to the
other terms and conditions hereof, each Borrower's ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, such Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The LC Issuer shall not be under any obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the LC Issuer from Issuing such Letter of Credit, or any Law
applicable to the LC Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over the LC Issuer shall prohibit, or request that the
LC Issuer refrain from, the Issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the LC
Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the LC Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the LC Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the LC Issuer
in good xxxxx xxxxx material to it and for which the LC Issuer is not
otherwise compensated hereunder; or
(ii) such Letter of Credit is not otherwise in form and
substance reasonably acceptable to the LC Issuer, or the Issuance of
such Letter of Credit shall violate any applicable policies of the LC
Issuer.
(c) The LC Issuer shall not Issue any Letter of Credit if:
(i) the LC Issuer has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter
of Credit, that one or more of the applicable conditions contained in
Article IV is not then satisfied;
(ii) the expiry date or any renewed or extended expiry
date of such Letter of Credit is later than 25 days prior to the
Revolving Commitment Maturity Date, unless all of the Lenders have
approved such expiry date in writing; or
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(iii) such Letter of Credit is denominated in a
currency other than Dollars or an Offshore Currency.
SECTION 2.06.02. ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued upon the written request of the
Company (acting on behalf of the applicable Borrower) received by the LC Issuer
and the Administrative Agent at least (A) in the case of an Offshore Currency
denominated Letter of Credit, six Business Days or (B) in the case of a Dollar
denominated Letter of Credit, four Business Days (or, in either case, such
shorter time as the LC Issuer and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed Issuance
Date. Each such request for issuance of a Letter of Credit shall be by
facsimile, confirmed promptly in an original writing, in the form of a Letter of
Credit Application, and shall specify in form and detail reasonably satisfactory
to the LC Issuer: (i) the proposed date of issuance (which shall be a Business
Day), the face amount and currency of the Letter of Credit; (ii) the expiry date
of such Letter of Credit; (iii) the name and address of the beneficiary thereof;
(iv) the documents to be presented by the beneficiary of such Letter of Credit
in case of any drawing thereunder; (v) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; (vi) the
applicable Borrower if a Borrower other than itself and (vii) such other matters
as the LC Issuer may require. If a Letter of Credit is requested to be
denominated in an Offshore Currency, the Administrative Agent shall promptly
notify each Lender thereof. Such Letter of Credit shall not be issued if the LC
Issuer notifies the Administrative Agent that it has determined that it cannot
pay under a Letter of Credit denominated in such Offshore Currency.
(b) At least two Business Days prior to the Issuance Date of any
Letter of Credit, the LC Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
the Letter of Credit Application or Letter of Credit Amendment Application from
the Company (acting on behalf of the applicable Borrower) and, if not, the LC
Issuer will provide the Administrative Agent with a copy thereof. If and only if
the Administrative Agent notifies the LC Issuer on or before the Business Day
immediately preceding the proposed date of Issuance of a Letter of Credit that
the LC Issuer may Issue such Letter of Credit, then, subject to the terms and
conditions hereof, the LC Issuer shall, on the requested date, Issue such Letter
of Credit for the account of the applicable Borrower in accordance with the LC
Issuer's usual and customary business practices. The Administrative Agent shall
not give such notice if the Administrative Agent has knowledge that (A) such
Issuance is not then permitted under Section 2.06.01(a) as a result of the
limitations set forth in clause (1), (2), (3) or (4) thereof or (B) the LC
Issuer has received a notice described in Section 2.06.01(c)(i). The
Administrative Agent will promptly notify the Lenders of any Letter of Credit
Issuance hereunder.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Commitment Maturity Date, the LC Issuer will, upon the
written request of the Company (acting on behalf of the applicable Borrower)
received by the LC Issuer (with a copy sent by the Company to the Administrative
Agent) at least four Business Days (or such shorter time as the LC Issuer and
the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of amendment, amend any Letter of Credit
issued by it, subject to approval thereof by the Administrative Agent. Each such
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request for amendment of a Letter of Credit shall be made by facsimile,
confirmed promptly in an original writing, made in the form of a Letter of
Credit Amendment Application and shall specify in form and detail reasonably
satisfactory to the LC Issuer: (i) the Letter of Credit to be amended; (ii) the
proposed date of amendment of such Letter of Credit (which shall be a Business
Day); (iii) the nature of the proposed amendment; and (iv) such other matters as
the LC Issuer may reasonably require. The LC Issuer shall have no obligation to
amend any Letter of Credit if the LC Issuer would have no obligation at such
time to Issue such Letter of Credit in its amended form under the terms of this
Agreement. The LC Issuer shall not amend any Letter of Credit if: (A) the LC
Issuer would not be permitted to Issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.
(d) The LC Issuer and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Revolving Commitment Maturity Date, at
the option of the applicable Borrower and upon the written request of the
Company (acting on behalf of the applicable Borrower) received by the LC Issuer
(with a copy sent by the Company to the Administrative Agent) at least four
Business Days (or such shorter time as the LC Issuer and the Administrative
Agent may agree in a particular instance in their sole discretion) prior to the
proposed date of notification of renewal, the LC Issuer shall be entitled, with
the approval of the Administrative Agent, to authorize the renewal of any Letter
of Credit issued by it. Each such request for renewal of a Letter of Credit
shall be made by facsimile, confirmed promptly in an original writing, in the
form of a Letter of Credit Amendment Application, and shall specify in form and
detail reasonably satisfactory to the LC Issuer: (i) the Letter of Credit to be
renewed; (ii) the proposed date of renewal of such Letter of Credit (which shall
be a Business Day); (iii) the revised expiry date of such Letter of Credit
(which, unless all Lenders otherwise consent in writing, shall be prior to the
Revolving Commitment Maturity Date); and (iv) such other matters as the LC
Issuer may reasonably require. The LC Issuer shall be under no obligation to
renew any Letter of Credit if the LC Issuer would have no obligation at such
time to Issue or amend such Letter of Credit in its renewed form under the terms
of this Agreement. The LC Issuer shall not renew any Letter of Credit if: (A)
the LC Issuer would not be permitted to Issue or amend such Letter of Credit in
its renewed form under the terms of this Agreement; or (B) the beneficiary of
such Letter of Credit does not accept the proposed renewal of such Letter of
Credit. If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice from the LC
Issuer that such Letter of Credit shall not be renewed, and if at the time of
renewal the LC Issuer would be entitled to authorize the renewal of such Letter
of Credit in accordance with this Section 2.06.02(d) upon the request of the
Company (acting on behalf of the applicable Borrower) but the LC Issuer shall
not have received any Letter of Credit Amendment Application from the Company
with respect to such renewal or other written direction by the Company with
respect thereto, and the LC Issuer shall not have received notice from the
Administrative Agent that such Letter of Credit shall not be renewed, the LC
Issuer shall allow such Letter of Credit to renew, and the Borrowers and the
Lenders hereby authorize such renewal, and, accordingly, the LC Issuer shall be
deemed to have received a Letter of Credit Amendment Application from the
Company (acting on behalf of the applicable Borrower) requesting such renewal.
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(e) The LC Issuer may, at its election (or as required by the
Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any applicable Letter of
Credit beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving
Commitment Maturity Date.
(f) This Agreement shall control in the event of any conflict with
any Letter of Credit Related Document (other than any Letter of Credit).
(g) The LC Issuer will deliver to the Administrative Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to the Company, an advising bank
or a beneficiary, a true and complete copy of such Letter of Credit or amendment
to or renewal of a Letter of Credit.
SECTION 2.06.03. RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS. (a)
Immediately upon the Issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the LC Issuer a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) such Lender's Pro Rata share
times (ii) the maximum amount available to be drawn under such Letter of Credit
and the amount of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the LC Issuer will promptly
notify the Company and the Administrative Agent. The applicable Borrower shall
reimburse the LC Issuer prior to 12:00 noon (Los Angeles time), (i) on each date
on which any amount is paid by the LC Issuer under any applicable Letter of
Credit (each such date, an "HONOR DATE"), in Dollars in the Dollar Equivalent of
an amount equal to the amount so paid by the LC Issuer, if the Administrative
Agent notifies the Company on or prior to the Business Day preceding the Honor
Date that the payment under such Letter of Credit will be made on the Honor Date
and (ii) on the Business Day following the Honor Date, in Dollars in the Dollar
Equivalent of an amount equal to the amount so paid by the LC Issuer, plus
interest thereon at the Base Rate (plus Applicable Margin for the Base Rate
Option) from and including the Honor Date to but excluding the date of such
reimbursement, if the Administrative Agent notifies the Company on the Honor
Date that the payment under such Letter of Credit is required on the Honor Date.
If the applicable Borrower fails to reimburse the LC Issuer for the full amount
of any drawing under any Letter of Credit by 12:00 noon (Los Angeles time) on
the Business Day on which such reimbursement is required as set forth above, the
LC Issuer will promptly notify the Administrative Agent and the Administrative
Agent will promptly notify each Lender and the Company thereof, and the Company
(acting on behalf of the applicable Borrower) shall be deemed to have requested
that Revolving Credit Loans bearing interest at the Base Rate (plus the
Applicable Margin for Base Rate Option) in the principal amount equal to the
Dollar Equivalent of such drawing be made by the Lenders to be disbursed on such
Business Day, subject to the amount of the unutilized portion of the Revolving
Credit Commitments and subject to the conditions set forth in Section 4.02
(other than clause (a) thereof). Any notice given by the LC Issuer or the
Administrative Agent pursuant to this Section 2.06.03(b) may be oral if promptly
confirmed in writing (including by facsimile); PROVIDED that the lack of such
prompt confirmation shall not affect the conclusiveness or binding effect of
such notice.
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(c) Each Lender shall upon any notice pursuant to Section 2.06.03(b)
make available to the Administrative Agent for the account of the LC Issuer an
amount in Dollars and in immediately available funds equal to its Pro Rata share
of the Dollar Equivalent of the amount of the drawing with respect to a Letter
of Credit, whereupon the participating Lenders shall (subject to Section
2.06.03(d)) each be deemed to have made a Revolving Credit Loan bearing interest
at the Base Rate (plus the Applicable Margin for Base Rate Option) to the
applicable Borrower in such amount. If any Lender so notified fails to make
available to the Administrative Agent for the account of the LC Issuer the
amount of such Lender's Pro Rata share of the amount of such drawing by no later
than 3:00 p.m. (Los Angeles time) on the Business Day on which it received such
notice pursuant to Section 2.06.03(b), then interest shall accrue on such
Lender's obligation to make such payment, from such Business Day to the date
such Lender makes such payment, at a rate PER ANNUM equal to the Federal Funds
Effective Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to effect such payment on
such date shall not relieve such Lender from its obligations under this Section
2.06.03.
(d) With respect to any unreimbursed drawing that is not converted
into Revolving Credit Loans bearing interest at the Base Rate (plus the
Applicable Margin for Base Rate Option) in whole or in part, because of any
Borrower's failure to satisfy the conditions set forth in Section 4.02 (other
than clause (a) thereof) or for any other reason, such Borrower shall be deemed
to have incurred from the LC Issuer a Letter of Credit Borrowing (for which each
Borrower shall be jointly and severally obligated) in Dollars in the Dollar
Equivalent of the amount of such drawing, which Letter of Credit Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate PER ANNUM equal to the Base Rate PLUS the Applicable Margin for Base Rate
Option (and after notice from the LC Issuer) PLUS 2% PER ANNUM, and each
Lender's payment to the LC Issuer pursuant to Section 2.06.03(c) with respect to
a Letter of Credit shall be deemed payment in respect of its participation in
such Letter of Credit Borrowing and shall constitute a Letter of Credit Advance
from such Lender in satisfaction of its participation obligation under this
Section 2.06.03.
(e) Each Lender's obligation in accordance with this Agreement to
make Revolving Credit Loans or Letter of Credit Advances, as contemplated by
this Section 2.06.03, as a result of a drawing under a Letter of Credit, shall
be absolute and unconditional and without recourse to the LC Issuer and shall
not be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the LC
Issuer, any Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Potential Default, an Event of Default or a
Material Adverse Effect or (iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; PROVIDED that each
Lender's obligation to make Revolving Credit Loans with respect to Letters of
Credit under this Section 2.06.03 is subject to the conditions set forth in
Section 4.02 (other than clause (a) thereof).
SECTION 2.06.04. REPAYMENT OF PARTICIPATIONS. (a) Upon (and only upon)
receipt by the Administrative Agent for the account of the LC Issuer of
immediately available funds from the applicable Borrower or any other Borrower
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(i) in reimbursement of any payment made by the LC Issuer under a Letter of
Credit with respect to which any Lender has paid the Administrative Agent for
the account of the LC Issuer for such Lender's participation in such Letter of
Credit pursuant to Section 2.06.03 or (ii) in payment of interest thereon, the
Administrative Agent will promptly pay to each Lender, in like funds as those
received by the Administrative Agent for the account of the LC Issuer, the
amount of such Lender's Pro Rata share of such funds, and the LC Issuer shall
receive the amount of the Pro Rata share of such funds of any Lender that did
not so pay the Administrative Agent for the account of the LC Issuer.
(b) If the Administrative Agent or the LC Issuer is required at any
time to return to any Borrower, or to a trustee, receiver, liquidator or
custodian, or to any official in any insolvency proceeding, any portion of any
payment made by such Borrower to the Administrative Agent for the account of the
LC Issuer pursuant to Section 2.06.04(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, to the extent any Lender
received its Pro Rata share of such amount pursuant to Section 2.06.04(a), such
Lender shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the LC Issuer the amount of its Pro Rata share of any
amount so returned by the Administrative Agent or the LC Issuer together with
interest thereon from the date such demand is made to the date such amount is
returned by such Lender to the Administrative Agent or the LC Issuer, at a rate
PER ANNUM equal to the Federal Funds Effective Rate in effect from time to time.
SECTION 2.06.05. ROLE OF THE LC ISSUER. (a) Each Lender and each
Borrower agree that, in paying any drawing under a Letter of Credit, the LC
Issuer shall not have any responsibility to obtain any document (other than any
sight draft and certificate expressly required by such Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Agent, LC Issuer nor any of their respective correspondents,
participants or assignees shall be liable to any Lender for: (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders (including the Required Lenders, as applicable); (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any Letter
of Credit Related Document.
(c) Each Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; PROVIDED that this assumption is not intended to, and shall not,
preclude any Borrower from pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under this Agreement or any
other agreement. Neither the Agents, LC Issuer, the Lenders nor any of their
respective correspondents, participants or assignees shall be liable or
responsible for any of the matters described in clauses (i) through (vii) of
Section 2.06.06; PROVIDED that, anything in such clauses to the contrary
notwithstanding, a Borrower may have a claim against the LC Issuer, and such LC
Issuer may be liable to such Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered by such
Borrower which such Borrower proves were caused by the LC Issuer's willful
misconduct, gross negligence or bad faith or the LC Issuer's bad faith, willful
or grossly negligent failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
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strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing: (i) the LC Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary;
and (ii) the LC Issuer shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
SECTION 2.06.06. OBLIGATIONS ABSOLUTE. The obligations of each and any
of the Borrowers under this Agreement and any Letter of Credit Related Document
to reimburse the LC Issuer for a drawing under a Letter of Credit, and to repay
any Letter of Credit Borrowing and any drawing under a Letter of Credit
converted into Revolving Credit Loans, shall be joint and several, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other Letter of Credit Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit Related Document;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of any
Borrower in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the Letter
of Credit Related Documents;
(iii) the existence of any claim, counterclaim, set-off,
recoupment, defense or other right that any Borrower may have at any
time against any beneficiary or any transferee of any Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the LC Issuer or any other Person, whether
in connection with this Agreement, the transactions contemplated
hereby or by the Letter of Credit Related Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect or any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(v) any payment by the LC Issuer under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the LC Issuer under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any insolvency proceeding;
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(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of
any Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to,
or a discharge of, any Borrower or a guarantor.
SECTION 2.06.07. CASH COLLATERAL PLEDGE. If any Letter of Credit
remains outstanding and partially or wholly undrawn as of the Revolving Credit
Maturity Date or the expiration or termination of the Total Revolving Credit
Commitment, then the Borrowers, as their joint and several obligation, shall
immediately Cash Collateralize the Letter of Credit Obligations in an amount
equal to the maximum amount then available to be drawn under all Letters of
Credit.
SECTION 2.06.08. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber of
Commerce most recently at the time of Issuance of any Letter of Credit or the
International Standby Practice 1998 (selected by the LC Issuer at its discretion
at the time of Issuance thereof) shall (unless otherwise expressly provided in
such Letter of Credit) apply to each Letter of Credit.
SECTION 2.07. MAKING OF LOANS. Whenever a Borrower desires that the
Lenders make Revolving Credit Loans or the Swingline Lender make Swingline
Advances, the Company (acting on behalf of the applicable Borrower) shall
provide Standard Notice to the Administrative Agent setting forth the following
information (a separate notice being required for each such type of Loans):
(a) Whether the proposed Loans are Revolving Credit
Loans or Swingline Advances;
(b) The date, which shall be a Business Day, on which
such proposed Loans are to be made;
(c) In the case of proposed Revolving Credit Loans, the
aggregate principal amount of such proposed Loans, which shall be the
sum of the principal amounts selected pursuant to clause (e) of this
Section 2.07, and, except as provided in Section 2.06.03, which shall
be at least $5,000,000 and integral multiples of $1,000,000 in excess
thereof;
(d) In the case of proposed Swingline Advances, the
aggregate principal amount of such proposed Swingline Advances, which
shall be at least $100,000 and integral multiples of $25,000 in
excess thereof;
(e) In the case of proposed Revolving Credit Loans, the
interest rate Option or Options selected in accordance with Section
2.08(a) hereof and the principal amounts selected in accordance with
Section 2.08(d) hereof of the Base Rate Portion and each Funding
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case
may be, of such proposed Loans;
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(f) In the case of proposed Revolving Credit Loans, with
respect to each such Funding Segment of such proposed Loans, the
Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.08(c) hereof; and
(g) the applicable Borrower if a Borrower other than
itself.
Standard Notice having been so provided, the Administrative Agent shall promptly
notify each Lender of the information contained therein and of the amount of
such Lender's Loan, calculated in accordance with Section 2.13. Unless any
applicable condition specified in Article IV hereof has not been satisfied, on
the date specified in such Standard Notice each Lender shall make the proceeds
of its Loan available to the Administrative Agent at the Administrative Agent's
Office, no later than 11:00 a.m., Los Angeles time, in funds immediately
available at such Office. The Administrative Agent will make the funds so
received available to the applicable Borrower in funds immediately available at
the Administrative Agent's Office. If and to the extent that the Administrative
Agent does not make such funds available to such Borrower on the date specified
in such Standard Notice the Administrative Agent shall pay to each Lender
interest on the amount made available by such Lender at the Federal Funds
Effective Rate for each day until either (i) the date such funds are made
available to such Borrower or (ii) the date such amounts are returned to such
Lender.
SECTION 2.08. INTEREST RATES. (a) OPTIONAL BASES OF BORROWING. The
unpaid principal amount of the Revolving Credit Loans shall bear interest for
each day from and including the date on which funds are made available to the
applicable Borrower by the Administrative Agent and to but excluding the date of
repayment on one or more bases selected by the Company (acting on behalf of the
applicable Borrower) from among the interest rate options set forth below.
Subject to the provisions of this Agreement, the Company (acting on behalf of
the applicable Borrower) may select different options to apply simultaneously to
different Portions of the Loans and may select different Funding Segments to
apply simultaneously to different parts of the CD Rate Portion or the Euro-Rate
Portion of the Loans. Each selection of a rate Option shall apply separately and
without overlap to the Revolving Credit Loans as a class. The aggregate number
of Funding Segments applicable to the CD Rate Portion and the Euro-Rate Portion
of the Revolving Credit Loans at any time shall not exceed ten unless otherwise
permitted by the Administrative Agent.
(i) BASE RATE OPTION: A rate per annum (computed on the
basis of a year of 365 or 366 days and actual days elapsed) for each
day equal to the Base Rate for such day plus the Applicable Margin
for such day. The "BASE RATE" for any day shall mean the greater of
(A) the Prime Rate for such day or (B) 0.50% plus the Federal Funds
Effective Rate for such day, such interest rate to change
automatically from time to time effective as of the effective date of
each change in the Prime Rate or the Federal Funds Effective Rate.
(ii) CD RATE OPTION: A rate per annum (based on a year of
360 days and actual days elapsed) for each day during the applicable
CD Rate Funding Period equal to the CD Rate for such day plus the
Applicable Margin for such day. "CD RATE" for any day shall mean for
each Funding Segment of the CD Rate Portion corresponding to a
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proposed or existing CD Rate Funding Period the rate per annum
determined by the Administrative Agent by adding
(A) the rate per annum (which shall be the same
for each day in such CD Rate Funding Period) determined in
good faith by the Administrative Agent in accordance with
its usual procedures (which determination shall be
conclusive absent manifest error) to be the arithmetic
average of the secondary market bid rates at or about 8:00
a.m., Los Angeles time, on the first day of such CD Rate
Funding Period by dealers of recognized standing in
negotiable certificates of deposit for the purchase at face
value of negotiable certificates of deposit of major money
center banks for delivery on such day in amounts comparable
to such Funding Segment and having maturities comparable to
such CD Rate Funding Period plus
(B) the Assessment Rate.
"ASSESSMENT RATE" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined in good faith
by the Administrative Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest error) to be
the maximum effective rate per annum payable by a depository
institution insured by the Federal Deposit Insurance Corporation (or
any successor) for such day as an assessment for insurance on Dollar
time deposits, exclusive of any credit that is or may be allowed
against such assessment on account of assessment payments made or to
be made by such depository institution. The CD Rate shall be adjusted
automatically as of the effective date of each change in the
Assessment Rate. The CD Rate Option shall be calculated in accordance
with the foregoing if any Lender is actually required to pay FDIC
assessments or, if required to pay such assessments, is required to
pay such assessments at the "Assessment Rate" as herein defined.
The Administrative Agent shall give prompt notice to the
Company and to the Lenders of the CD Rate determined or adjusted in
accordance with the definition of CD Rate, which determination or
adjustment shall be conclusive if made in good faith.
(iii) EURO-RATE OPTION: A rate per annum (based on a year
of 360 days and actual days elapsed) for each day during the
applicable Euro-Rate Funding Period equal to the Euro-Rate for such
day plus, in each case, the Applicable Margin for Euro-Rate Option
for such day. "EURO-RATE" for any day, as used herein, shall mean for
each Funding Segment of the Euro-Rate Portion corresponding to a
proposed or existing Euro-Rate Funding Period the rate per annum
determined by the Administrative Agent to be the rate of interest
(which shall be the same for each day in such Euro-Rate Funding
Period) determined in good faith by the Administrative Agent in
accordance with its usual procedures from the Reuters Screen LIBO
page (which determination shall be conclusive absent manifest error)
to be the average of the rates per annum for deposits in Dollars
offered to the leading banks in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
first day of such Euro-Rate Funding Period for delivery on the first
day of such Euro-Rate Funding Period in amounts comparable to such
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Funding Segment and having maturities comparable to such Funding
Period.
The Administrative Agent shall give prompt notice to the
Company and to the Lenders of the Euro-Rate determined in accordance
with the definition of the Euro-Rate, which determination shall be
conclusive if made in good faith.
(b) APPLICABLE MARGINS. The "APPLICABLE MARGIN" with respect to the
Base Rate Option, the CD Rate Option and the Euro-Rate Option shall be
determined in accordance with the pricing grid set forth in the definition of
"Applicable Margin".
(c) FUNDING PERIODS. At any time when the Company (acting on behalf
of the applicable Borrower) shall select, convert to or renew the CD Rate Option
or the Euro-Rate Option to apply to any part of the Loans, the Company (acting
on behalf of the applicable Borrower) shall specify one or more periods (the
"FUNDING PERIODS") during which each such Option shall apply, such Funding
Periods being as set forth below:
INTEREST RATE OPTION AVAILABLE FUNDING PERIODS
CD Rate Option 30, 60, 90 or 180 days or such longer
period as may be offered by all of the
Lenders ("CD RATE FUNDING PERIOD"); and
Euro-Rate Option One, two, three or six months ("EURO-RATE
FUNDING PERIOD");
PROVIDED, that:
(i) Each CD Rate Funding Period which would otherwise end
on a day which is not a Business Day shall be extended to the next
succeeding Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a
Business Day, and the term "month", when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Administrative Agent (which determination shall be
conclusive); and
(iii) In the case of Revolving Credit Loans, the Company
(acting on behalf of the applicable Borrower) may not select a
Funding Period that would end after the Revolving Credit Maturity
Date.
(d) TRANSACTIONAL AMOUNTS. Every selection of, conversion from,
conversion to or renewal of an interest rate option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
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effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans, or the aggregate principal amount of each Funding
Segment of the CD Rate Portion or the Euro-Rate Portion of the Revolving Credit
Loans, shall be at least $5,000,000 and integral multiples of $1,000,000 in
excess thereof.
(e) CD RATE OR EURO-RATE UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which a CD Rate or a Euro-Rate would
otherwise be set, the Administrative Agent (in the case of clause (A)
or (B) below) shall have determined in good faith (which
determination shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not
exist for ascertaining such CD Rate or Euro-Rate, or
(B) a contingency has occurred which materially
and adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of recognized
standing or the interbank eurodollar market, as the case
may be, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any part of the CD Rate
Portion or the Euro-Rate Portion has been made impracticable or
unlawful by compliance by such Lender or a Notional Euro-Rate Funding
Office in good faith with any Law or guideline or interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or with any request or
directive of any such Governmental Authority (whether or not having
the force of law);
then, and in any such event, the Administrative Agent or such Lender, as the
case may be, may notify the Company of such determination (and any Lender giving
such notice shall notify the Administrative Agent). Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given), the obligation of each of the Lenders, in the case of clause (i)
above, or such Affected Lender, in the case of clause (ii) above, to allow the
Company (acting on behalf of the applicable Borrower) to select, convert to or
renew the CD Rate Option or Euro-Rate Option, as the case may be, shall be
suspended until the Administrative Agent or such Lender, as the case may be,
shall have later notified the Company (and any Lender giving such notice shall
notify the Administrative Agent) of the Administrative Agent's or such Lender's
determination in good faith (which determination shall be conclusive absent
manifest error) that the circumstance giving rise to such previous determination
no longer exist.
If any Lender notifies the Company of a determination under
subsection (ii) of this Section 2.08(e), the CD Rate Portion or the Euro-Rate
Portion, as the case may be, of the Loans of such Lender (the "AFFECTED LENDER")
shall, subject to Section 2.14(b) hereof, automatically be converted to the Base
Rate Option as of the last day of the then current Funding Period with respect
to such Loans (in the case of a determination that the making, maintenance or
funding of any CD Rate Portion or Euro-Rate Portion of such Loans is
impracticable) and the last day on which the making, maintenance or funding of
any CD Rate Portion or Euro-Rate Portion of such Loans is not unlawful (in the
case of a determination that the making, maintenance or funding of any CD Rate
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Portion or Euro-Rate Portion of such Loans is unlawful) and accrued interest
thereon shall be due and payable on such date.
If at the time the Administrative Agent or an Affected Lender makes a
determination under subsection (i) or (ii) of this Section 2.08(e), as the case
may be, the Company (acting on behalf of the applicable Borrower) previously has
notified the Administrative Agent that it wishes to select, convert to or renew
the CD Rate Option or the Euro-Rate Option, as the case may be, with respect to
any proposed Loans but such Loans have not yet been made, such notification
shall be deemed to provide for selection of, conversion to or renewal of the
Base Rate Option instead of the CD Rate Option or the Euro-Rate Option, as the
case may be, with respect to such Loans or, in the case of a determination by an
Affected Lender, such Loans only of such Affected Lender.
SECTION 2.09. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS. (a)
CONVERSION OR RENEWAL. Subject to the provisions of Section 2.14(b) hereof, the
Company (acting on behalf of the applicable Borrower) may convert any part of
the Revolving Credit Loans made to a Borrower from any interest rate Option or
Options to one or more different interest rate Options and may renew the CD Rate
Option or the Euro-Rate Option as to any Funding Segment of the CD Rate Portion
or the Euro-Rate Portion:
(i) At any time with respect to conversion from the
Base Rate Option; or
(ii) At the expiration of any Funding Period with respect
to conversions from or renewals of the CD Rate Option or the
Euro-Rate Option, as the case may be, as to the Funding Segment
corresponding to such expiring Funding Period.
Whenever a Borrower desires to convert or renew any interest rate
Option or Options, the Company (acting on behalf of the applicable Borrower)
shall provide to the Administrative Agent Standard Notice setting forth the
following information:
(w) The date, which shall be a Business Day, on which
the proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with
Section 2.08(d) hereof of the Base Rate Portion and each Funding
Segment of the CD Rate Portion and the Euro-Rate Portion, as the case
may be, to be converted from or renewed;
(y) The interest rate Option or Options selected in
accordance with Section 2.08(a) hereof and the principal amounts
selected in accordance with Section 2.08(d) hereof of the Base Rate
Portion and each Funding Segment of the CD Rate Portion and the
Euro-Rate Portion, as the case may be, to be converted to; and
(z) With respect to each Funding Segment to be converted
to or renewed, the Funding Period selected in accordance with Section
2.08(c) hereof to apply to such Funding Segment.
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Standard Notice having been so provided, after the date specified in
such Standard Notice, interest shall be calculated upon the principal amount of
the Loans as so converted or renewed.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the Company
of conversion or renewal in the circumstances described in Section 2.09(a)(ii)
hereof, any part of the CD Rate Portion or Euro-Rate Portion for which such
notice is not received shall be converted automatically to the Base Rate Option
on the last day of the expiring Funding Period.
SECTION 2.10. PREPAYMENTS GENERALLY. Whenever a Borrower desires to
prepay any part of its Loans, the Company (acting on behalf of the applicable
Borrower) shall provide Standard Notice to the Administrative Agent setting
forth the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which
shall be the sum of the principal amounts selected pursuant to clause
(c) of this Section 2.10; and
(c) The principal amounts selected in accordance with
Section 2.08(d) hereof of the Base Rate Portion and each part of each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion, as
the case may be, to be prepaid.
SECTION 2.11. OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS. (a)
OPTIONAL PREPAYMENTS. Each Borrower shall have the right at its option from time
to time to prepay its Revolving Credit Loans and Swingline Advances in whole or
part without premium or penalty (subject, however, to Section 2.14(b) hereof).
(b) MANDATORY PREPAYMENTS. (i) Unless the Required Lenders otherwise
agree in writing, the Borrowers shall, within 15 days after a Change in Control,
prepay in full all outstanding Loans (subject to Section 2.14(b) hereof) and
terminate, permanently and irrevocably, all existing Commitments of the Lenders
hereunder, and Cash Collateralize the amount available for drawing under any and
all outstanding Letters of Credit.
(ii) If, on any day, the Dollar Equivalent of the sum of the all
Eurocurrency Loans outstanding on the day of any such determination plus the
outstanding Loans made in Dollars plus the Dollar Equivalent of all Letter of
Credit Obligations exceeds the Total Revolving Credit Commitment as then in
effect, the Administrative Agent shall immediately notify the Company and the
Borrowers shall prepay on the Business Day following such day Base Rate Loans
and then, if necessary, Eurocurrency Loans to the extent required so that such
aggregate unpaid amount will not exceed the Total Revolving Credit Commitment as
then in effect; such prepayment being subject however to Section 2.14(b) hereof.
The Borrowers may designate the Loans to be prepaid by notice provided by the
Company (acting on behalf of the applicable Borrower) to the Administrative
Agent before each such prepayment.
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(c) GENERAL. All prepayments shall be made in accordance with Section
2.10 hereof. No prepayments shall be permitted with respect to Competitive Bid
Loans except as required by Sections 2.18 and 10.17 or (ii) with the consent of
the Lender or Lenders that have made the same.
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including without
limitation, the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement. The entries made in the accounts
of each Lender maintained pursuant hereto shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; PROVIDED that the failure of any
Lender to maintain any such account, or any error therein, shall not in any
manner effect the joint and several obligation of any Borrower to repay (with
applicable interest) the Loans made to any of the Borrowers by such Lender in
accordance with the terms of this Agreement.
SECTION 2.12. INTEREST PAYMENT DATES. Interest on the Base Rate
Portion shall be due and payable on each Regular Payment Date. Interest on each
Funding Segment of the CD Rate Portion shall be due and payable on the last day
of the corresponding CD Rate Funding Period and, if such CD Rate Funding Period
is longer than 90 days, also every 90th day during such CD Rate Funding Period.
Interest on each Funding Segment of the Euro-Rate Portion shall be due and
payable on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also on the last day
of every third month during such Funding Period. After maturity of any part of
the Loans (by acceleration or otherwise), interest on such part of the Loans
shall be due and payable on demand.
SECTION 2.13. PRO RATA TREATMENT. (a) CERTAIN DEFINITIONS. As used in
this Agreement, the following term has the meaning indicated:
"PRO RATA" means from or to each Lender: (i) in the case of
payments of Facility Fee, reductions pursuant to Section 2.02(c)
hereof of the Revolving Credit Committed Amounts, payments on account
of Swingline Advance Participating Interests under Section 2.05(f)
hereof, participations in the Letter of Credit Obligations pursuant
to Section 2.06 hereof and indemnification payments under Section
8.07 hereof, ratably in accordance with such Lender's Commitment
Percentage; (ii) in the case of payments of principal of and interest
on, and conversions and renewals of interest rate options with
respect to, any particular Funding Segments, ratably in accordance
with such Lender's percentage share of such Funding Segment; (iii) in
the case of payments of principal and conversions and renewals of
interest rate options with respect to, the Base Rate Portion of some
or all of the Revolving Credit Loans, ratably in accordance with such
Lender's percentage share of such Base Rate Portion; and (iv) in the
case of payments of interest for any day with respect to the Base
Rate Portion of some of all of the Revolving Credit Loans, ratably in
accordance with such Lender's percentage share of such Base Rate
Portion on such day.
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(b) MAKING OF REVOLVING CREDIT LOANS. Revolving Credit Loans shall be
made by the Lenders ratably in accordance with their respective Commitment
Percentages.
(c) SEVERAL OBLIGATIONS. The failure of any Lender to make a
Revolving Credit Loan shall not relieve any other Lender of its obligation to
lend hereunder, but neither any Agent nor any Lender shall be responsible for
the failure of any other Lender to make a Revolving Credit Loan.
SECTION 2.14. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES. (a)
INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES, RESERVES, CAPITAL
ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or change therein or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) adopted or made after the date hereof:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office or the LC Issuer to any tax or changes the basis of taxation,
to the extent such tax or change relates to the Euro-Rate Loans or
the CD Rate Loans, with respect to this Agreement, the Notes, the
Euro-Rate Loans or the CD Rate Loans, the Letters of Credit,
participations therein or payments by any Borrower of principal of,
or interest on, the Euro-Rate Loans or the CD Rate Loans, from any
Borrower hereunder or under the Notes (except for taxes on the
overall net income or overall gross receipts of such Lender or such
Notional Euro-Rate Funding Office or the LC Issuer imposed by the
jurisdictions (federal, state, local and foreign) in which the
Lender's principal office or Notional Euro-Rate Funding Office or the
LC Issuer is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other acquisitions of funds by,
such Lender or any Notional Euro-Rate Funding Office (in connection
with the Euro-Rate Loans or the CD Rate Loans) or the LC Issuer
(other than requirements expressly included herein in the
determination of the CD Rate or the Euro-Rate, as the case may be,
hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
contingent) of, or credits or commitments to extend credit extended
by, any Lender or any Notional Euro-Rate Funding Office or the LC
Issuer, or (B) otherwise applicable to the obligations of any Lender
or any Notional Euro-Rate Funding Office or the LC Issuer under this
Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate
Funding Office or the LC Issuer any other condition or expense, to
the extent such condition or expense relates to the Euro-Rate Loans
or the CD Rate Loans, directly related to this Agreement, the Notes
or its making, maintenance or funding of any Euro-Rate or CD Rate
Loan or the Letters of Credit or participations therein.
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and the result of any of the foregoing is reasonably determined by any Lender or
the LC Issuer to increase the cost to, reduce the income receivable by, or
impose any expense (excluding loss of margin) upon such Lender, any Notional
Euro-Rate Funding Office or the LC Issuer, as applicable, or, in the case of
clause (iii) hereof, any Person controlling a Lender or the LC Issuer, with
respect to this Agreement, the Notes, the Letters of Credit or the making,
maintenance or funding of any Loan or Letters of Credit or participations
therein (or, in the case of any capital adequacy or similar requirement, to have
the effect of reducing the rate of return on such Lender's or LC Issuer's or
controlling Person's capital, taking into consideration such Lender's or LC
Issuer's or controlling Person's policies with respect to capital adequacy) by
an amount which such Lender or the LC Issuer reasonably deems to be material
(such Lender being deemed for this purpose to have made, maintained or funded
each Funding Segment of the CD Rate Portion and the Euro-Rate Portion from a
Corresponding Source of Funds), such Lender or the LC Issuer may from time to
time promptly notify the Company of the amount determined in good faith (using
any reasonable averaging and attribution methods) by such Lender or the LC
Issuer (which determination shall be conclusive absent manifest error) to be
necessary to compensate such Lender or such Notional Euro-Rate Funding Office or
the LC Issuer for such increase, reduction or imposition. No Borrower shall have
an obligation to reimburse a Lender or the LC Issuer under this Section 2.14(a)
for any amount with respect to any such increase, reduction or imposition which
amount is attributable to a period of more than 60 days ending prior to the date
of such Lender's or LC Issuer's first notice to the Company of such increase,
reduction or imposition. Each Lender or the LC Issuer will notify the Company
and the Administrative Agent of any event occurring after the date of this
Agreement which will entitle such Lender or the LC Issuer to compensation
pursuant to this Section 2.14 as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation. Each Lender or
the LC Issuer will furnish the Company and the Administrative Agent with a
statement setting forth in reasonable detail the basis, the manner of
calculation and the amount of each request by such Lender or the LC Issuer for
compensation from any Borrower under this Section 2.14. Such amount shall be due
and payable by the applicable Borrower to such Lender or the LC Issuer five
Business Days after such notice is given to the Company. In the event that after
a Borrower shall have paid any additional amount under this Section 2.14(a) with
respect to any Loan or Letter of Credit or participations therein such Lender or
the LC Issuer shall have successfully contested such law, regulation, treaty,
order, directive, interpretation or condition, then, to the extent that such
Lender or the LC Issuer is or will be placed in the same position it was prior
to the incurrence of the additional costs received or receivable (on an
after-tax basis) and its contest of such law, regulation or other condition,
such Lender or the LC Issuer shall refund to the relevant Borrowers such
additional amount or any portion thereof with respect to which such Lender or
the LC Issuer is or will be placed in such position.
(b) FUNDING BREAKAGE. In addition to the compensation required under
Section 2.14(a) hereof, each Borrower shall, jointly and severally, indemnify
each Lender against any loss or expense (excluding loss of margin) which such
Lender has incurred as a consequence of:
(i) any payment, prepayment or conversion of any part of
any Funding Segment of any CD Rate Portion or Euro-Rate Portion of
the Loans on a day other than the last day of the corresponding
Funding Period or any prepayment of any Competitive Bid Loan prior to
its maturity date (whether or not such payment, prepayment or
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conversion is mandatory or automatic and whether or not such payment
or prepayment is then due),
(ii) any attempt by any Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or in part any
notice stated herein to be irrevocable (the Administrative Agent
having in its sole discretion the options (A) to give effect to such
attempted revocation provided that indemnity under this Section
2.14(b) is obtained or (B) to treat such attempted revocation as
having no force or effect, as if never made), or
(iii) any failure of any Borrower to pay when due (by
acceleration or otherwise) any principal, interest or any other
amount due hereunder or under any Note relating to a Euro-Rate Loan
or a CD Rate Loan.
If any Lender sustains or incurs any such loss or expense it shall
from time to time promptly notify the Company and the Administrative Agent in
writing setting forth in reasonable detail the amount determined in good faith
by such Lender (which determination shall be conclusive absent manifest error)
to be necessary to indemnify such Lender for such loss or expense. Such amount
shall be due and payable by the Borrowers to the Administrative Agent for the
account of such Lender, five Business Days after such notice is given.
(c) ADDITIONAL INTEREST. (i) So long as any Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including loans made with reference to the CD Rate, such Lender may require the
Borrowers, as their joint and several obligation, to pay, but only in respect of
any period during which such reserves shall actually be maintained by such
Lender, additional interest on the unpaid principal amount of the CD Rate
Portion of the Loans, at an interest rate per annum equal at all times during
each CD Rate Funding Period to the difference obtained by subtracting (A) the CD
Rate for such CD Rate Funding Period from (B) the rate obtained by dividing such
CD Rate referred to in clause (A) above by that percentage equal to 100% minus
the CD Rate Reserve Percentage of such Lender for such CD Rate Funding Period,
payable on each date on which interest is payable on such CD Rate Portion.
(ii) So long as any Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, such Lender may require the Borrowers, as their joint and several
obligation, to pay, but only in respect of any period during which such reserves
shall actually be maintained by such Lender, additional interest on the unpaid
principal amount of the Euro-Rate Portion of the Loans, at an interest rate per
annum equal at all times during each Euro-Rate Funding Period to the difference
obtained by subtracting (A) the Euro-Rate for such Euro-Rate Funding Period from
(B) the rate obtained by dividing such Euro-Rate referred to in clause (A) above
by that percentage equal to 100% minus the Euro-Rate Reserve Percentage of such
Lender for such Euro-Rate Funding Period, payable on each date on which interest
is payable on such Euro-Rate Portion.
(iii) If any Lender shall claim entitlement to any additional amount
pursuant to this Section 2.14(c), then such Lender shall deliver to the Company
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a certificate setting forth the basis for the determination thereof as promptly
as practicable. More than one such certificate may be so delivered. Each such
certificate shall be conclusive and binding for all purposes as to the amount
due absent manifest error. The Borrowers shall pay to each Lender the amount
shown as due on any such certificate within five Business Days after its receipt
of the same.
SECTION 2.15. PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS. (a)
PAYMENTS GENERALLY. All payments and prepayments to be made by any Borrower in
respect of principal, interest, fees, indemnity, expenses or other amounts due
from any Borrower hereunder or under any other Loan Document in Dollars shall be
payable at 11:00 a.m., Los Angeles time, on the day when due without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, and an action therefor shall immediately accrue, without
setoff, counterclaim, withholding or other deduction of any kind or nature,
except for payments to a Lender subject to a withholding deduction under Section
2.16(c) hereof. Except for payments under Sections 2.03(q), 2.14 and 10.06
hereof, such payments shall be made for the account of Lenders to the
Administrative Agent's Bancontrol Account #12334-16521 at its Office in Dollars
in funds immediately available at such Office, and payments under Sections 2.14
and 10.06 hereof shall be made to the applicable Lender at such domestic account
as it shall specify to the Company from time to time in funds immediately
available at such account. Any payment or prepayment received by the
Administrative Agent or such Lender after 11:00 a.m., Los Angeles time, on any
day shall be deemed to have been received on the next succeeding Business Day.
The Administrative Agent shall distribute to the Lenders all such payments
received by it from any Borrower as promptly as practicable after receipt by the
Administrative Agent. If and to the extent that the Administrative Agent has not
forwarded to any Lender such Lender's share of any such payment on the same
Business Day as such payment is received (or deemed received) from such
Borrower, the Administrative Agent shall pay to such Lender interest on such
amount at the Federal Funds Effective Rate for each day until such payment is
made. Upon termination of this Agreement and payment in full of all principal,
interest, fees, expenses and other amounts due from any Borrower hereunder or
under any other Loan Document, each Lender will promptly xxxx its Notes
"cancelled" and forward them to the Administrative Agent for delivery to the
Company.
(b) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by law,
after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from the Borrowers,
as their joint and several obligation, hereunder or under any other Loan
Document, such amounts shall bear interest for each day until paid (before and
after judgment), payable on demand, at a rate per annum based on a year of 365
or 366 days, as the case may be, and actual days elapsed (in the case of any
Portion of Loans bearing interest at the Base Rate Option) and 360 days and
actual days elapsed (in the case of any Portion of Loans bearing interest at the
CD Rate Option or the Euro-Rate Option) which for each day shall be equal to the
following:
(i) In the case of any part of the CD Rate Portion or
Euro-Rate Portion of any Loans, (A) until the end of the applicable
then-current Funding Period at a rate per annum 2% above the rate
otherwise applicable to such part, and (B) thereafter in accordance
with the following clause (ii); and
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(ii) In the case of any other amount due from any Borrower
hereunder or under any other Loan Document, 2% above the then-current
Base Rate plus the Applicable Margin for Base Rate Option.
(c) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Lenders
hereunder that the applicable Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that such Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at the Federal Funds Effective Rate.
SECTION 2.16 TAXES. (a) PAYMENTS NET OF TAXES. All payments made by
the Borrowers under this Agreement shall be made free and clear of, and without
reduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, and all liabilities with respect thereto,
excluding
(i) in the case of each Agent, the LC Issuer and each
Lender, income or franchise taxes imposed on such Agent, the LC
Issuer or such Lender by the jurisdiction under the laws of which
such Agent, the LC Issuer or such Lender is organized or any
political subdivision or taxing authority thereof or therein or as a
result of a connection between such Agent, the LC Issuer or such
Lender and any jurisdiction other than a connection resulting solely
from this Agreement and the transactions contemplated hereby, and
(ii) in the case of the LC Issuer and each Lender, income
or franchise taxes imposed by any jurisdiction in which the LC Issuer
or such Lender's lending offices which issue or book Letters of
Credit, or make or book Loans are located or any political
subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "TAXES"). If any Taxes are required to be
withheld or deducted from any amounts payable to any Agent, the LC Issuer or any
Lender under this Agreement or any other Loan Document, the Borrowers, as their
joint and several obligation, shall pay the relevant amount of such Taxes and
the amounts so payable to such Agent, the LC Issuer or such Lender shall be
increased to the extent necessary to yield to such Agent, the LC Issuer or such
Lender (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by a Borrower with respect to
payments made in connection with this Agreement, as promptly as possible
thereafter, the Company (acting on behalf of the applicable Borrower) shall send
to the Administrative Agent for its own account or for the account of the LC
Issuer or such Lender, as the case may be, a certified copy of an original
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official receipt received by the applicable Borrower showing payment thereof. In
the event that after the applicable Borrower shall have paid any additional
amount under this Section 2.16(a) with respect to any Loan or any Letter of
Credit the Lender or the LC Issuer, as the case may be, shall have received a
refund or credit of any Taxes paid by such Borrower with respect to payments
made in connection with this Agreement, then, to the extent that such Lender or
the LC Issuer receives a refund or credit of all or a portion of such Taxes from
the Governmental Authority to whom such Taxes were paid by such Borrower, such
Lender or the LC Issuer shall refund to such Borrower such additional amount or
any portion thereof with respect to which such Lender or the LC Issuer receives
such refund or credit. Nothing contained in this paragraph (a) shall require any
Lender, the LC Issuer or any Agent to make available any of its tax returns (or
any other information relating to its taxes which it deems to be confidential).
(b) INDEMNITY. Each Borrower hereby jointly and severally indemnifies
each Agent, the LC Issuer and each of the Lenders for the full amount of all
Taxes attributable to payments by or on behalf of any Borrower hereunder or
under any of the other Loan Documents, any such Taxes paid by such Agent, the LC
Issuer or such Lender, as the case may be, any present or future claims,
liabilities or losses with respect to or resulting from any omission of any
Borrower to pay or delay in paying any Taxes (including any incremental Taxes,
interest or penalties that may become payable by such Agent, the LC Issuer or
such Lender as a result of any failure of any Borrower to pay such Taxes),
whether or not such Taxes were correctly or legally asserted. Such
indemnification shall be made within 30 days from the date such Lender, the LC
Issuer or such Agent, as the case may be, makes written demand therefor.
(c) WITHHOLDING AND BACKUP WITHHOLDING. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any State thereof agrees that, on or prior to the Closing Date
(or, with respect to any Lender which becomes a party to this Agreement pursuant
to Section 10.14 hereof, the Transfer Effective Date), it will furnish to the
Company and the Administrative Agent
(i) two valid, duly completed copies of United States
Internal Revenue Service Form W-8ECI or United States Internal
Revenue Form W-8BEN or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to receive
payments under this Agreement and the other Loan Documents without
deduction or withholding of any United States federal income taxes,
and
(ii) a valid, duly completed Internal Revenue Service Form
W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax.
Each Lender which so delivers to the Company and the Administrative
Agent a Form W-8BEN or W-8ECI and Form W-8 or W-9 applicable forms (the "Forms")
agrees to deliver to the Company and the Administrative Agent two further copies
of the Forms, or other manner of certification, as the case may be, on or before
the date that any such form expires or becomes obsolete or otherwise is required
to be resubmitted as a condition to obtaining an exemption from withholding tax,
or after the occurrence of any event requiring a change in the most recent form
previously delivered by it, and such extensions or renewals thereof as may
reasonably be requested by the Company and the Administrative Agent, certifying
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in the case of a Form W-8BEN or Form W-8ECI that such Lender is entitled to
receive payments under this Agreement or any other Loan Document without
deduction or withholding of any United States federal income taxes, unless in
any such cases an event (including any changes in Law) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such letter or form with respect to it and such Lender
advises the Company and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax. Notwithstanding anything to the contrary
contained herein, no Borrower shall be required to pay any additional amounts
pursuant to this Section 2.16 or pursuant to Section 2.14 if the obligation to
pay such additional amounts would not have arisen but for the failure by any
Agent or any Lender to comply with its obligations hereunder, or if such Agent
or Lender shall have delivered the appropriate Forms and such Agent or Lender is
not entitled to exemption from deduction or withholding of U.S. federal income
tax in respect of payments made by such Borrower hereunder for any reason other
than a change in U.S. law or regulations or in the official interpretation
thereof after the date of delivery of such Forms.
SECTION 2.17. FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE. (a)
NOTIONAL FUNDING. Each Lender shall have the right from time to time,
prospectively or retrospectively, without notice to the Company or any other
Borrower, to deem any branch, subsidiary or affiliate of such Lender to have
made, maintained or funded any part of the Euro-Rate Portion at any time. Any
branch, subsidiary or affiliate so deemed shall be known as a "Notional
Euro-Rate Funding Office." Such Lender shall deem any part of the Euro-Rate
Portion of the Loans or the funding therefor to have been transferred to a
different Notional Euro-Rate Funding Office if such transfer would avoid or cure
an event or condition described in Section 2.08(e)(ii) hereof or would lessen
compensation payable by a Borrower under Sections 2.14(a), 2.16(a) or 2.16(b)
hereof, and provided that such Lender determines in its reasonable discretion
that such transfer would be practicable and would not have a material adverse
effect on such part of the Loans, such Lender or any Notional Euro-Rate Funding
Office (it being assumed for purposes of such determination that each part of
the Euro-Rate Portion is actually made or maintained by or funded through the
corresponding Notional Euro-Rate Funding Office). Notional Euro-Rate Funding
Offices may be selected by such Lender without regard to such Lender's actual
methods of making, maintaining or funding Loans or any sources of funding
actually used by or available to such Lender.
(b) ACTUAL FUNDING. Each Lender shall have the right from time to
time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to hold any applicable
Note payable to its order for the benefit and account of such branch, subsidiary
or affiliate or (ii) request the Borrowers to issue one or more promissory notes
in the principal amount of such Euro-Rate Portion, in substantially the form
attached hereto as Exhibit A with the blanks appropriately filled, payable to
such branch, subsidiary or affiliate and with appropriate changes reflecting
that the holder thereof is not obligated to make any additional Loans to any of
the Borrowers. Each Borrower agrees to comply promptly with any request under
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subsection (ii) of this Section 2.17(b). If any Lender causes a branch,
subsidiary or affiliate to make or maintain any part of the Euro-Rate Portion
hereunder, all terms and conditions of this Agreement shall, except where the
context clearly requires otherwise, be applicable to such part of the Euro-Rate
Portion and to any note payable to the order of such branch, subsidiary or
affiliate to the same extent as if such part of the Euro-Rate Portion were made
or maintained and such note were a Revolving Credit Note payable to such
Lender's order.
SECTION 2.18. EXTENSION OF REVOLVING CREDIT MATURITY DATE. On and
after the first Anniversary Date hereof, the Revolving Credit Maturity Date and
the Competitive Bid Expiration Date may be extended for successive one year
periods at the request of the Company (acting on behalf of each Borrower) with
the express consent of each Lender (to be at such Lender's sole discretion) as
provided below. Not later than the date 60 days prior to each Anniversary Date,
the Company (acting on behalf of the Borrower) shall, at its option, in a
written notice to the Administrative Agent request (an "EXTENSION REQUEST") that
the Revolving Credit Maturity Date be extended for a period of one year. The
Administrative Agent shall promptly inform the Lenders of such Extension
Request. Each Lender that agrees with such Extension Request shall deliver to
the Administrative Agent its express written consent thereto no later than such
Anniversary Date. If (i) any Lender notifies the Administrative Agent in writing
prior to such Anniversary Date that it will not consent to such Extension
Request or (ii) all of the Lenders have not in writing expressly consented to
any such Extension Request as provided in the preceding sentence, then the
Administrative Agent shall so notify the Company and the Company, at its option,
may replace each Lender which has not agreed to such Extension Request (a
"NONEXTENDING LENDER") with another commercial lending institution reasonably
satisfactory to the Administrative Agent and the LC Issuer (a "REPLACEMENT
LENDER") and/or with one or more existing Lenders by giving (not later than 160
days after such Anniversary Date) notice of the name of such Replacement Lender
or such existing Lenders to the Administrative Agent. Unless the Administrative
Agent or the LC Issuer shall object to the identity of such proposed Replacement
Lender (in the case of a Replacement Lender) prior to the date 170 days after
such Anniversary Date, upon notice from the Administrative Agent, each
Nonextending Lender shall promptly (but in no event later than the date which is
180 days after such Anniversary Date) assign all of its interests hereunder to
such Replacement Lender and/or existing Lenders in accordance with the
provisions of Section 10.14(c) hereof. If all Lenders consent to any such
Extension Request (or, if all Nonextending Lenders are replaced in accordance
with this Section), then as of 2:00 p.m., Los Angeles time on the date which is
180 days after such Anniversary Date, the Revolving Credit Maturity Date shall
be deemed to have been extended for, and shall be the date, one year after the
then effective Revolving Credit Maturity Date, and if the Revolving Credit
Maturity Date is so extended, the Competitive Bid Expiration Date (as such dates
may have been previously extended pursuant to this Section) shall be deemed to
have been extended for, and shall be the date, one year after the then effective
Competitive Bid Expiration Date. If any Lender declines to consent to any such
Extension Request and such Lender is not replaced in accordance with this
Section, then the Revolving Credit Maturity Date and the Competitive Bid
Expiration Date then in effect shall not be extended. To the extent the Other
Credit Agreement is in effect, the "REVOLVING CREDIT COMMITMENT AMOUNT" of a
Nonextending Lender under the Other Credit Agreement shall be replaced or
assumed at the same percentage by such Replacement Lender and/or such existing
Lenders.
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SECTION 2.19. APPOINTMENT OF THE COMPANY AS AGENT FOR BORROWER. Each
Borrower hereby irrevocably appoints the Company as its agent hereunder (i) to
request Revolving Credit Loans, Competitive Bid Loans, Swingline Advances and
Letters of Credit on its behalf under Article II hereof, (ii) to increase the
aggregate Commitments hereunder, (iii) to terminate or reduce the Revolving
Credit Commitment and (iv) to take any other action contemplated by the Loan
Documents with respect to any credit extended to any Borrower. Any notice or
request provided to the Company shall be deemed a notice or request provided to
the Company as agent for each and any one of the Borrowers.
SECTION 2.20. BORROWER WAIVER. (a) GENERAL. Each Borrower hereby
waives any defense based on, or arising out of any defense of, any other
Borrower, other than payment in full of the Obligations, based on or arising out
of the disability of any Borrower, any other guarantor or any other party, or
the unenforceability of the Obligations or any part thereof or from any cause,
or the cessation from any cause of the liability of any Borrower other than
payment in full of the Obligations.
(b) SUBROGATION AND CONTRIBUTION. Unless and until the Obligations
have been fully paid and satisfied and the Commitments have terminated, each
Borrower hereby agrees not to exercise or otherwise assert any claim or other
right it may now or hereafter acquire against any other Borrower that arises
from the existence, payment, performance or enforcement of such Borrower's joint
and several obligations under this Agreement or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in any
claim or remedy of any Agent, any Lender or any other holder of the indebtedness
against any other Borrower whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from any other Borrower directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or security
on account of such claim or other right. Each Borrowing Subsidiary that makes a
payment or distribution under this Agreement on account of a Loan incurred by
another Borrower shall be entitled to contribution from each other Borrower in a
pro rata amount based on the Adjusted Net Assets of each Borrower. For purposes
hereof, "ADJUSTED NET ASSETS" of a Borrower at any date shall mean the lesser of
the amount by which (x) the fair value of the assets of such Borrower exceeds
the total amount of liabilities, including without limitation, contingent
liabilities, but excluding liabilities under this Agreement, of such Borrower at
such date and (y) the present fair salable value of the assets of such Borrower
at such date exceeds the amount that will be required to pay the probably
liability of such Borrower on its debts (after giving effect to all other fixed
and contingent liabilities of such Borrower) excluding Indebtedness in respect
of this Agreement, as they become absolute and matured.
(c) JOINT AND SEVERAL OBLIGATIONS. Notwithstanding anything herein to
the contrary, any obligation hereunder of the Company or any Borrowing
Subsidiary is the joint and several obligation of each Borrower (including,
without limitation, any obligation hereunder which the Agreement does not
specifically designate as a joint and several obligation).
SECTION 2.21. DESIGNATION OF BORROWING SUBSIDIARIES . Any
wholly-owned Subsidiary of the Company may elect (with the Company's consent) to
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become a Borrowing Subsidiary hereunder by delivering to the Administrative
Agent an Election to Participate in the form of Exhibit M hereto executed by
such Borrowing Subsidiary and, through an Authorized Representative, by the
Company and the consent of the Administrative Agent shall be required prior to
the effectiveness of such designation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to each Agent and each
Lender as to itself and, where the following representations and warranties
apply to Subsidiaries, as to each of its Subsidiaries, as follows:
SECTION 3.01. CORPORATE STATUS. The Company, each Borrowing
Subsidiary and each other Significant Subsidiary thereof (a) is a corporation or
limited liability company, as applicable, duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; (b) has
corporate or limited liability company, as applicable, power and authority to
own its property and to transact the business in which it is engaged or
presently proposes to engage; and (c) is duly qualified to do business as a
foreign corporation or limited liability company, as applicable, and is in good
standing in all jurisdictions in which the ownership of its properties or the
nature of its activities or both makes such qualification necessary; except for
matters that, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
Schedule 3.01 hereof states as of the date hereof the jurisdiction of
incorporation of each Borrower, each other Significant Subsidiary and each
Special Purpose Subsidiary.
SECTION 3.02. CORPORATE POWER AND AUTHORIZATION. Each Credit Party
has the corporate or limited liability company, as applicable, power to execute,
deliver and perform the Loan Documents to be executed by it and has taken all
necessary action, corporate or otherwise, to authorize the execution, delivery
and performance of this Agreement and the other Loan Documents to be executed by
it. Each Borrower has the power to borrow and request the Issuance of the
Letters of Credit hereunder and has taken all necessary corporate or limited
liability company, as applicable, action to authorize the borrowings and the
requests for the Issuance of the Letters of Credit hereunder on the terms and
conditions of this Agreement. No consent or approval of any Person (including,
without limitation, any stockholder or member of any Credit Party), no consent
or approval of any landlord or mortgagee, no waiver of any Lien of right or
distraint or other similar right and no consent, license, approval,
authorization or declaration of any governmental authority, bureau or agency, is
or will be required in connection with the execution, delivery or performance by
each Credit Party, or the validity, enforcement or priority, of the Loan
Documents to be executed by it, except as set forth on Schedule 3.02 hereto,
each of which has been duly and validly obtained on or prior to the date hereof
and is now in full force and effect and is sufficient for its intended purpose.
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SECTION 3.03. EXECUTION AND BINDING EFFECT. This Agreement and each
other Loan Document to which each Credit Party is a party has been, or upon its
execution and delivery will be, duly executed and delivered by such Credit Party
and each constitutes, or upon its execution and delivery will constitute, the
valid and legally binding obligation of such Credit Party, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally and except that the remedy of specific performance
and other equitable remedies are subject to judicial discretion. There is no
action, suit, proceeding or investigation pending or, to the knowledge of any
Credit Party, threatened against or affecting the Company or any of its
Subsidiaries which questions the validity or the enforceability of any of the
Loan Documents.
SECTION 3.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval,
order, consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "GOVERNMENTAL ACTION") is
or will be necessary in connection with execution and delivery of this Agreement
or any other Loan Document, consummation by the Credit Parties of the
transactions herein or therein contemplated, or performance of or compliance
with the terms and conditions hereof or thereof. Neither the Company nor any
Subsidiary thereof is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or to any Federal or state statute or regulation
limiting any Borrower's ability to incur Indebtedness for money borrowed or to
request the Issuance of the Letters of Credit. Neither the Company nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 3.05. ABSENCE OF CONFLICTS. The execution and delivery by
each Credit Party of this Agreement and each other Loan Document to which it is
a party and performance by it hereunder and thereunder, will not violate any Law
(including, without limitation, Regulations U, T and X of the Federal Reserve
Board) and will not conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar document or
instrument of any court or governmental authority, bureau or agency, domestic or
foreign, or its certificate of incorporation or by-laws or any similar
constituent documents or create (with or without the giving of notice or lapse
of time, or both) a default under or breach of any material agreement, bond,
note or indenture to which it is a party (by successor in interest or
otherwise), or by which it is bound or any of its properties or assets is
affected, or result in the imposition of any Lien of any nature whatsoever upon
any of the properties or assets owned by or used in connection with the business
of the Company or any of its Subsidiaries.
SECTION 3.06. AUDITED FINANCIAL STATEMENTS. The Company has
heretofore furnished to each Agent and each Lender consolidated balance sheets
of the Company and its consolidated Subsidiaries as of December 29, 2000 (as
such financial statements have been restated and filed with the Securities and
Exchange Commission) and March 30, 2001 and the related consolidated statements
of income, cash flows and changes in stockholders' equity for the fiscal year or
one fiscal quarter, as the case may be, then ended, and with respect to such
information as of December 29, 2000 as examined and reported on by
PricewaterhouseCoopers LLP, independent certified public accountants for the
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Company, who delivered an unqualified opinion in respect thereof. Such financial
statements (including the notes thereto) present fairly in all material respects
the financial condition of the Company and its consolidated Subsidiaries as of
the end of such fiscal year or three month period, as the case may be, and the
results of their operations and their cash flows for the fiscal year or fiscal
quarter then ended, all in conformity with GAAP, except for the absence of
footnotes and for normal year end audit adjustments in the case of the three
month statements.
SECTION 3.07. ABSENCE OF UNDISCLOSED LIABILITIES. As of the date
hereof, neither the Company nor any Subsidiary of the Company has any liability
or obligation of any nature whatever (whether absolute, accrued, contingent or
otherwise, whether or not due), forward or long-term commitments or unrealized
or anticipated losses from unfavorable commitments, except (a) as disclosed in
the financial statements referred to in Section 3.06 hereof, (b) matters that,
individually or in the aggregate, in the Company's reasonable judgment, could
not reasonably be expected to have a Material Adverse Effect and (c)
liabilities, obligations, commitments and losses incurred after March 30, 2001
otherwise permitted, or not restricted, by the Previous Credit Agreement or this
Agreement. As of the date hereof, neither the Company nor any Subsidiary of the
Company had any Indebtedness other than the Indebtedness of the Company and its
Subsidiaries set forth on Schedule 3.07 hereto.
SECTION 3.08. ABSENCE OF MATERIAL ADVERSE CHANGES. Except as
disclosed in the financial statements referred to in Section 3.06 hereof and for
matters covered by, or referred to in, the Exit Funding Agreement, since
December 29, 2000, there has been no material adverse change in the business,
operations, properties, assets or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole.
SECTION 3.09. ACCURATE AND COMPLETE DISCLOSURE. No information
heretofore, contemporaneously or hereafter provided by or on behalf of the
Company or any Subsidiary thereof in writing to any Agent or any Lender in
writing pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby contains any untrue statement of a material fact
or omits to state any material fact necessary to make such information (taken as
a whole) not misleading in any material respect at such time in light of the
circumstances in which it was provided. The Company has disclosed to each Agent
and each Lender in writing every fact or circumstance known to the Company which
has a Material Adverse Effect.
SECTION 3.10. MARGIN REGULATIONS. No part of the proceeds of any
Loan or any Letter of Credit issued hereunder will be used for the purpose of
buying or carrying any "MARGIN STOCK," as such term is used in Regulation U of
the Board of Governors of the Federal Reserve System, as amended from time to
time, or to extend credit to others for the purpose of buying or carrying any
"margin stock," in either case in a manner which would violate or conflict with
Regulation T, U, or X of the Board of Governors of the Federal Reserve System.
Neither the Company nor any Subsidiary thereof is engaged in the business of
extending credit to others for the purpose of buying or carrying "margin stock."
Neither the making of any Loan, the issuance of any Letter of Credit nor any use
of proceeds of any such Loan or Letter of Credit will violate or conflict with
the provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System, as amended from time to time.
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SECTION 3.11. SUBSIDIARIES. Schedule 3.11 hereof states as of the
date hereof each Significant Subsidiary and Borrowing Subsidiary of the Company
and the percentage of outstanding shares owned by the Company, by each Borrowing
Subsidiary and by each other Significant Subsidiary. The outstanding shares of
each Significant Subsidiary and Borrowing Subsidiary of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Company and each Significant Subsidiary and Borrowing Subsidiary thereof owns
beneficially and of record and has good title to all of the shares represented
by the ownership percentage shown in such Schedule 3.11, free and clear of any
Lien. There are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or otherwise) which may in any circumstances now or hereafter
obligate any Significant Subsidiary or Borrowing Subsidiary to issue any shares
of its capital stock or any other securities. As of the date hereof, no
Significant Subsidiary or Borrowing Subsidiary has outstanding any class of
preferred stock or any class of common stock with a prior right to dividends.
SECTION 3.12. PARTNERSHIPS, ETC. As of the date hereof, neither the
Company, any Borrowing Subsidiary nor any other Significant Subsidiary is a
partner (general or limited) of any partnership, is a party to any joint venture
or owns (beneficially or of record) any equity or similar interest in any Person
(including but not limited to any interest pursuant to which the Company, such
Borrowing Subsidiary or such other Significant Subsidiary has or may in any
circumstance have an obligation to make capital contributions to, or be
generally liable for or on account of the liabilities, acts or omissions of such
other Person), except for the partnership interests and joint ventures set forth
in Schedule 3.12 hereof.
SECTION 3.13. LITIGATION There is no pending or (to the Company's
knowledge) threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Company or any Subsidiary of the
Company, except for (a) matters described in the financial statements referred
to in Section 3.06 hereof, and (b) matters that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.14. ABSENCE OF EVENTS OF DEFAULT. No event has occurred and
is continuing and no condition exists which constitutes an Event of Default or
Potential Default.
SECTION 3.15. ABSENCE OF OTHER DEFAULTS. Neither the Company nor any
Subsidiary thereof is in default under any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a party (by
successor in interest or otherwise) or by which it is bound, or any other
agreement or other instrument by which any of the properties or assets owned by
it or used in the conduct of its business is affected, which individually or in
the aggregate, would have a Material Adverse Effect. The Company and each
Subsidiary thereof have complied and are in compliance in all respects with all
Laws, except for such instances of non-compliance that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.16. INSURANCE. The policies, binders or self-insurance
programs for fire, liability, product liability, workmen's compensation,
vehicular and other insurance currently held by or on behalf of the Company and
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each Subsidiary thereof insure its material properties and business activities
against such losses and risks as are adequate to protect its properties in
accordance with customary industry practice when entered into or renewed. To the
best knowledge of the Company, as of the date hereof, all such policies, binders
and self-insurance programs are in full force and effect. As of the date hereof,
neither the Company nor, to the best knowledge of the Company, any of its
Subsidiaries has received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be made in
order to continue such insurance and, to the best knowledge of the Company, no
such improvements or expenditures are required. As of the date hereof, neither
the Company nor, to the best knowledge of the Company, any of its Subsidiaries
has received notice of cancellation of any material insurance policy or binder.
SECTION 3.17. TITLE TO PROPERTY. The Company and each Subsidiary
thereof has good and marketable title in fee simple to all material real
property owned or purported to be owned by it and necessary for the operation of
its business and good title to all other material property of whatever nature
owned or purported to be owned by it, including but not limited to all property
reflected in the most recent audited balance sheet referred to in Section 3.06
hereof or submitted pursuant to Section 5.01(a) hereof, as the case may be
(except as sold or otherwise disposed of in the ordinary course of business
after the date of such balance sheet or the Existing Credit Agreements for
periods prior to the date hereof and thereafter as otherwise expressly permitted
by the Loan Documents) in each case free and clear of all Liens, other than
Permitted Liens or Liens permitted pursuant to Section 6.02 hereof.
SECTION 3.18. INTELLECTUAL PROPERTY. The Company and each Subsidiary
thereof owns, or is licensed or otherwise has the right to use, all the patents,
trademarks, service marks, names (trade, service, fictitious or otherwise),
copyrights, technology (including but not limited to computer programs and
software), processes, data bases and other rights, free from burdensome
restrictions, necessary to own and operate its properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others, except for such instances of non-compliance
that, individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
SECTION 3.19. TAXES. The Company and each Subsidiary thereof have
filed all Federal and other material tax returns required to be filed by it and
has not failed to pay any material taxes, or interest and penalties relating
thereto, on or before the due dates thereof except for taxes not yet due and
except for those the amount or validity of which is currently being contested in
good faith by appropriate proceedings. Except to the extent that reserves
therefor are reflected in the financial statements, to the best knowledge of the
Company (a) there are no material Federal, state or local tax liabilities of the
Company or any of its Subsidiaries due or to become due for any tax year ended
on or prior to the date hereof relating to the Company or any of its
Subsidiaries, whether incurred in respect of or measured by the income of the
Company or any of its Subsidiaries, which are not properly reflected in the
financial statements delivered pursuant to Section 3.06, and (b) there are no
material claims pending, proposed or threatened against the Company or any of
its Subsidiaries for past Federal, state or local taxes, except those, if any,
as to which proper reserves in accordance with GAAP are reflected in such
financial statements.
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SECTION 3.20. EMPLOYEE BENEFITS. (a) No borrowing or issuance of
Letters of Credit contemplated by this Agreement is a transaction which is
subject to the prohibitions of Section 406 of ERISA or in connection with which
a tax could be imposed pursuant to Section 4975 of the Code or a civil penalty
assessed pursuant to Section 502(i) of ERISA (assuming that monies other than
monies representing plan assets are borrowed hereunder). Neither the Company,
any of its Subsidiaries nor any other Person, including any fiduciary, has
engaged in any prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) which could subject any of the Benefit Plans, the Company,
or any Subsidiary (or any entity which they have an obligation to indemnify) to
any tax or penalty imposed under 4975 of the Code or Section 502(i) of ERISA or
any other material liability under a foreign law of similar nature which alone
or together with any other item described in this Section 3.20 would have a
Material Adverse Effect.
(b) No Borrower nor any of the Company's other Significant
Subsidiaries (including any member of their respective Controlled Group) (i) has
incurred or expects to incur any liability under Title IV of ERISA or Section
502(g) of ERISA or any analogous provision relating to Section 515 of ERISA or
(ii) has become subject or expects to be subject to the lien described in
Section 412(n) of the Code, which alone or together with any other item
described in this Section 3.20 would have a Material Adverse Effect.
(c) The Pension Plans do not have an "accumulated funding deficiency"
(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA. No Pension Plan has benefit liabilities as defined in Section
4001(a)(16) of ERISA which exceed the assets of such Pension Plan by such an
amount that the termination of such Pension Plan alone or together with any
other item described in this Section would have a Material Adverse Effect. The
Company has received a favorable determination letter from the IRS with respect
to all Pension Plans except for such Pension Plans with respect to which the
failure to receive such a favorable determination would not alone or together
with any other item described in this Section 3.20 have a Material Adverse
Effect and nothing has happened since the date of such letter that has adversely
affected such qualification. There is no Lien outstanding or security interest
given in connection with a Pension Plan or under Title IV of ERISA which would
exceed the percentage limitations of Section 6.02(a) hereof. As of the date
hereof, the Company has received both IRS and PBGC approval with respect to any
terminated Benefit Plans subject to Title IV of ERISA.
(d) No Borrower nor any of the Company's other Significant
Subsidiaries (including any member of their respective Controlled Group) is in
default in any material respect under any Benefit Plan and all Benefit Plans are
administered in accordance with their terms and are in all material respects in
compliance with all applicable Laws, except where any such default or failure to
comply would not alone or together with any other item described in this Section
3.20 have a Material Adverse Effect.
SECTION 3.21. ENVIRONMENTAL MATTERS. (a) The Company and each
Significant Subsidiary of the Company, to the Company's knowledge, has been
operated in compliance with all applicable Requirements of Law, except for (i)
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matters set forth in Schedule 3.21(a) hereof and (ii) matters which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(b) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has obtained all Environmental Permits required by
applicable Requirements of Law for the ownership and operation of their
respective properties, and all such Environmental Permits are in full force and
effect or the Company and each Significant Subsidiary of the Company, as the
case may be, has made all appropriate filings for issuance or renewal of such
Environmental Permits, except for (i) matters set forth in Schedule 3.21(b)
hereof, and (ii) matters which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(c) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, is not aware of any acts, omissions, events or
circumstances that may interfere with or prevent continued compliance with the
Requirements of Law and Environmental Permits referred to in (a) and (b) above,
except for (i) matters set forth in Schedule 3.21(c) hereof, and (ii) matters
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(d) The Company and each Significant Subsidiary of the Company will
use its best efforts to comply with all Requirements of Law and obtain all
Environmental Permits which may be legally imposed in the future in
jurisdictions in which the Company and each Significant Subsidiary, as the case
may be, may then be doing business; PROVIDED, HOWEVER, that the Company and each
Significant Subsidiary shall not be deemed to be in violation of Section 3.21 of
this Agreement as a result of any failure to comply with any provisions of such
Requirements of Law and Environmental Permits (i) the applicability or validity
of which is being contested by the Company or any of Company's Significant
Subsidiaries in good faith and by appropriate proceedings, or (ii) the
noncompliance with which would not result in fines, penalties, injunctive relief
of other civil or criminal liabilities which, individually or in the aggregate,
would have a Material Adverse Effect.
(e) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has not received notice of any asserted or threatened
claim, action, suit, proceeding, hearing, investigation or request for
information relating to any Environmental Matter, except for (i) matters set
forth in Schedule 3.21(e) hereof, and (ii) matters which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(f) The Company and each Significant Subsidiary of the Company, to
the Company's knowledge, has not received notice from any governmental authority
that any of them is a potentially responsible party under any Requirements of
Law at any disposal site containing Hazardous Materials, nor received any notice
that any lien under any Requirements of Law against any property of any Borrower
or other Significant Subsidiary of the Company exists, except for (i) matters
setting forth in Schedule 3.21(f) hereof, and (ii) matters, which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
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ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. CONDITIONS TO INITIAL LOANS OR LETTER OF CREDIT. The
obligation of each Lender to make Loans (or of the LC Issuer to Issue a Letter
of Credit) on the Closing Date is subject to the satisfaction, immediately prior
to or concurrently with the making of such Loan (or the Issuance of such Letter
of Credit), of the following conditions precedent, in addition to the conditions
precedent set forth in Section 4.02 hereof:
(a) AGREEMENT; NOTES. The Administrative Agent shall have received
executed counterparts of this Agreement for each Lender, duly executed by each
Credit Party, each Agent and each Lender, and executed Revolving Credit Notes,
Competitive Bid Loan Notes and a Swingline Advance Note conforming to the
requirements hereof, duly executed on behalf of each Borrower for each Lender
requesting the same.
(b) CORPORATE PROCEEDINGS. The Administrative Agent shall have
received, with copies for each Lender, certificates by the Secretary or
Assistant Secretary of each Credit Party dated as of the Closing Date as to (i)
true copies of the articles of incorporation and by-laws (or other constituent
documents) of such Credit Party in effect on such date, (ii) true copies of all
corporate action taken by such Credit Party relative to this Agreement and the
other Loan Documents and (iii) the incumbency and signature of the respective
officers of such Credit Party executing this Agreement and the other Loan
Documents to which such Credit Party is a party, together with satisfactory
evidence of the incumbency of such Secretary or Assistant Secretary. The
Administrative Agent shall have received, with a copy for each Lender,
certificates from the appropriate Secretary of State or other applicable
Governmental Authority dated not more than 30 days before the Closing Date
showing the good standing of each Credit Party in its state of incorporation.
(c) FINANCIAL STATEMENTS. The Administrative Agent shall have
received, with a copy for each Lender, copies of the consolidated financial
statements referred to in Section 3.06 hereof.
(d) LEGAL OPINION OF COUNSEL TO THE CREDIT PARTIES. The
Administrative Agent shall have received, with an executed counterpart for each
Lender, opinions addressed to the Agents and each Lender, dated the Closing
Date, of (i) Xxxxxx X. X'Xxxxx, Esquire, Senior Vice President and General
Counsel of the Company, and (ii) White & Case LLP, special New York counsel to
the Credit Parties, each in a form reasonably satisfactory to the Administrative
Agent.
(e) FEES, EXPENSES, ETC. All fees and other compensation required to
be paid to each Agent or the Lenders pursuant hereto or pursuant to any other
written agreement on or prior to the Closing Date shall have been paid or
received.
(f) PLEDGE. The Administrative Agent shall have received (i) executed
counterparts of the Pledge Agreement, duly executed by each Guarantor (as
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defined in the Previous Credit Agreement) and the collateral agent thereunder
and (ii) as the collateral agent thereunder, the collateral pledged thereunder.
(g) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other matters in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably
satisfactory in form and substance to each Agent.
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT. The
obligation of each Lender to make any Loan (including the initial Loans) and of
the LC Issuer to Issue any Letter of Credit (including the initial Letter of
Credit) is subject to satisfaction of the following further conditions
precedent:
(a) NOTICE. Appropriate notice of such Loan or request for the
Issuance of such Letter of Credit, as the case may be, shall have been given by
the Company as provided in Article II hereof.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made herein by the Company and each other Borrower shall be true and
correct in all material respects on and as of such date as if made on and as of
such date (except with respect to representations and warranties which
specifically refer to an earlier date, which shall be true and correct in all
material respects as of such earlier date), both before and after giving effect
to the Loans or the Letters of Credit requested to be made or Issued, as the
case may be, on such date, except that the foregoing shall not apply to the
representations and warranties set forth in Section 3.08 hereof in the case of
any Loans the proceeds of which are used solely to repay Loans maturing on such
date.
(c) NO DEFAULTS. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans or
the Letters of Credit requested to be made or Issued, as the case may be, on
such date.
(d) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of the
Loans shall cause any Lender to violate or conflict with any Law. Neither the
issuance nor use of the Letters of Credit shall cause the LC Issuer to violate
or conflict with any Law.
Each request by the Company (acting on behalf of any Borrower) for any Loan or
Letter of Credit (including the initial Loans and Letter of Credit) shall
constitute a representation and warranty by each Borrower that the conditions
set forth in this Section 4.02 have been satisfied as of the date of such
request. Failure of the Administrative Agent to receive notice from the Company
to the contrary before such Loan is made or such Letter of Credit is issued
shall constitute a further representation and warranty by the Company that the
conditions referred to in this Section 4.02 have been satisfied as of the date
such Loan is made or such Letter of Credit is Issued.
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ARTICLE V
AFFIRMATIVE COVENANTS
The Company hereby covenants to each Agent and each Lender as
follows:
SECTION 5.01. BASIC REPORTING REQUIREMENTS. (a) ANNUAL AUDIT REPORTS.
The Company shall deliver to the Administrative Agent, with a copy for each
Lender, as soon as available, but in any event within 90 days after the last day
of each of its fiscal years, a consolidated balance sheet of the Company as at
such last day of the fiscal year, and the related consolidated statement of
income and retained earnings and changes in financial position, for such fiscal
year, each prepared in accordance with GAAP (except as required by any change in
accounting principles or concurred in by the Company's independent certified
public accountants), in reasonable detail, and, as to the financial statements,
certified without qualification (other than relating to a change in accounting
principles with which such accountants concur and other than any other
qualification which the Administrative Agent and the Required Lenders deem, in
their reasonable judgment, to be immaterial) by PriceWaterhouseCoopers LLP or
another firm of independent certified public accountants reasonably satisfactory
to the Administrative Agent as fairly presenting in all material respects the
financial position and the results of operations of the Company as at and for
the year ending on such date and as having been prepared in accordance with
GAAP.
(b) QUARTERLY CONSOLIDATED REPORTS. The Company shall deliver to the
Administrative Agent, with a copy for each Lender, as soon as available, but in
any event within 45 days after the end of each of the Company's first three
fiscal quarterly periods, a consolidated balance sheet of the Company as of the
last day of such quarter and consolidated statement of income and retained
earnings and changes in financial position, for such quarter, and on a
comparative basis figures for the corresponding period of the immediately
preceding fiscal year, all in reasonable detail, each such statement to be
certified in a certificate of a Responsible Officer of the Company, as fairly
presenting in all material respects the financial position and the results of
operations of the Company as at such date and for such quarter and as having
been prepared in accordance with GAAP (subject to customary year-end audit
adjustments and the absence of footnotes).
(c) QUARTERLY COMPLIANCE CERTIFICATES. The Company shall deliver to
the Administrative Agent, with a copy for each Lender, a Quarterly Compliance
Certificate in substantially the form set forth as Exhibit F hereto, duly
completed and signed by a Responsible Officer of the Company concurrently with
the delivery of the financial statements referred to in subsections (a) and (b)
of this Section 5.01. Each such Quarterly Compliance Certificate shall in
addition include a listing, as of the end of the most recently completed fiscal
quarter, showing the respective amounts of Indebtedness for borrowed money of
each Subsidiary (other than any Special Purpose Subsidiary) of the Company which
is organized under the laws of a jurisdiction outside the United States. To the
extent such information is not included in the financial statements delivered
pursuant to Section 5.01(a) hereof, each Quarterly Compliance Certificate with
respect to the last quarter of a fiscal year shall in addition include a
listing, as of the end of such quarter, of the respective amounts of
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Indebtedness for borrowed money of each Special Purpose Subsidiary of the
Company which is organized under the laws of a jurisdiction outside the United
States.
(d) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their
becoming available to the Company, the Company shall deliver to the
Administrative Agent, with a copy for each Lender, a copy of (i) all regular or
special reports, registration statements and amendments to the foregoing which
the Company or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, and (ii) all
reports, proxy statements, financial statements and other information
distributed by the Company to its stockholders (for distribution to Parent's
stockholders) or bondholders.
(e) FURTHER INFORMATION. The Company will promptly furnish to the
Administrative Agent, with a copy for each Lender that has requested the same,
such other information and in such form as any Agent or any Lender may
reasonably request from time to time.
(f) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of any of
the following, the Company shall give the Administrative Agent notice thereof,
together with a written statement of a Responsible Officer of the Company
setting forth the details thereof and any action with respect thereto taken or
proposed to be taken by the Company:
(i) Any Event of Default or Potential Default; PROVIDED,
HOWEVER, that the Company shall not be required to deliver notice of
any violation of any covenant contained in Article V hereof (other
than Section 5.01 hereof) during the 30 days immediately following
the first occurrence of such violation if the Company reasonably
believes that such violation will be cured within such 30-day period;
and PROVIDED, further, that the Company shall not be required to
deliver notice of any violation of any covenant contained in Section
5.01 hereof (other than subparagraph (f)(i) thereof) during the first
10 days after the first occurrence of such violation if the Company
reasonably believes that such violation will be cured within such
10-day period.
(ii) Any change in the business, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as
a whole which could reasonably be expected to have a Material Adverse
Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against the
Company or any Subsidiary, except for matters that, if adversely
decided, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(iv) Any violation, breach or default by the Company or
any Subsidiary of the Company of or under any agreement or instrument
material to the business, operations or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole which
could in the reasonable judgment of the Company have a Material
Adverse Effect.
(v) Any material correspondence with the PBGC, the
Secretary of Labor or any representative of the IRS with respect to
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any Benefit Plan or Pension Plan, relating to an actual or threatened
change or development which would materially and adversely affect the
financial condition of the Company and its Subsidiaries taken as a
whole; and copies of any notices from the PBGC to the Company with
respect to the intent of the PBGC to institute involuntary
proceedings.
(vi) Any Environmental Claim pending or threatened against
the Company or any Significant Subsidiary of the Company, or any past
or present acts, omissions, events or circumstances (including but
not limited to any dumping, leaching, deposition, removal,
abandonment, escape, emission, discharge or release of any Hazardous
Material at, on or under any facility or property now or previously
owned, operated or leased by the Company or any Significant
Subsidiary of the Company) that could form the basis of such
Environmental Claim, which Environmental Claim, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(g) VISITATION; VERIFICATION. The Company shall, and shall cause each
of its Subsidiaries to, permit the Lenders to make or cause to be made, at their
own expense (and with respect to the Administrative Agent on behalf of the
Lenders, after the occurrence of and during the continuance of an Event of
Default, at the Company's expense), inspections and audits of any of its books,
records and papers and to make extracts therefrom and copies thereof, or to make
inspections and examinations of any of its properties and facilities (including,
without limitation, any Project sites), on reasonable notice, at all such
reasonable times and as often as any Lender may reasonably require, in order to
assure that the Company and its Subsidiaries are and will be in compliance with
their respective obligations under the Loan Documents or to evaluate the
Lenders' investment in the then outstanding Notes. The Company shall have the
right to have an authorized representative present during the inspection and
examination of any of the Company's or any of its Subsidiaries' properties and
facilities; PROVIDED, HOWEVER, that the exercise of such right shall not delay
or hinder the Lenders' right to such inspection and examination.
The Administrative Agent shall promptly deliver to each Lender copies
of all notices received pursuant to this Section 5.01.
SECTION 5.02. INSURANCE. The Company shall, and shall cause each of
its Subsidiaries to, maintain, at its expense, and keep in effect with
responsible insurance companies, such liability insurance for bodily injury and
third party property damage as is customary in the case of corporations engaged
in the same or similar business or having similar properties, similarly
situated, PROVIDED, HOWEVER, that the Company may maintain a system of
self-insurance in accordance with sound business practice as is customary for
corporations having a similar net worth as the Company. The Company shall, and
shall cause each of its Subsidiaries to, keep and maintain, at its expense, its
material real and personal property insured against loss or damage by fire,
theft, explosion, spoilage, and all other risks ordinarily insured against by
other owners or users of such properties in similar businesses in an amount
equal to the full replacement or cash value thereof, subject to deductible
amounts which the Company, in its reasonable judgment, deems prudent. The
Company shall, and shall cause each of its Subsidiaries to, carry all insurance
required by Law to cover its obligations to the PBGC.
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SECTION 5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Company shall, and shall cause each Subsidiary to, pay or
discharge
(a) on or prior to the date on which penalties are
imposed by a taxing authority with respect thereto, all material
taxes, assessments and other governmental charges imposed upon it or
any of its properties;
(b) on or prior to the date when due, all material lawful
claims of materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons which, if unpaid, might result in the creation
of a Lien upon any such property; and
(c) on or prior to the date when due, all other material
lawful claims which, if unpaid, might result in the creation of a
Lien upon any such property or which, if unpaid, might give rise to a
claim entitled to priority over general creditors of the Company or
such Subsidiary in a case under Title 11 (Bankruptcy) of the United
States Code, as amended;
PROVIDED, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced the Company or such Subsidiary need not
pay or discharge any such tax, assessment, charge or claim so long as (x) the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted and (y) such reserves or other appropriate provisions as
may be required by GAAP shall have been made therefor.
SECTION 5.04. PRESERVATION OF CORPORATE STATUS. The Company shall,
and shall cause each other Borrower and each of the Company's other Significant
Subsidiaries to, do, or cause to be done, all things necessary to preserve and
keep in full force and effect its corporate existence and all permits, rights
and privileges necessary for the proper conduct of its business; PROVIDED,
HOWEVER, that nothing in this Section 5.04 shall prevent the withdrawal by the
Company, any other Borrower or any of the Company's other Significant
Subsidiaries of its qualification as a foreign corporation in any jurisdiction
where such withdrawal could not reasonably be expected to have a Material
Adverse Effect; and PROVIDED FURTHER, that nothing in this Section 5.04 shall
prevent the Company, any other Borrower or any of the Company's other
Significant Subsidiaries from failing to maintain or terminating any right,
privilege or permit, if such failure or termination, is not in violation of or
will not cause an Event of Default under, any provision of this Agreement and
does not have a Material Adverse Effect.
SECTION 5.05. GOVERNMENTAL APPROVALS AND FILINGS. The Company shall,
and shall cause each Subsidiary to, keep and maintain in full force and effect
all Governmental Actions necessary in connection with execution and delivery of
any Loan Document, consummation of the transactions hereon or therein
contemplated, performance of or compliance with the terms and conditions hereof
or thereof or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof or thereof.
SECTION 5.06. MAINTENANCE OF PROPERTIES. The Company shall, and
shall cause each Subsidiary to, maintain or cause to be maintained in good
repair, working order and condition the properties now or hereafter owned,
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leased or otherwise possessed by it and shall make or cause to be made all
needful and proper repairs, renewals, replacements and improvements thereto so
that they are able to serve the functions for which they are currently being
used, except to the extent that the failure to do so would not have a Material
Adverse Effect.
SECTION 5.07. AVOIDANCE OF OTHER CONFLICTS. The Company shall not,
and shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or otherwise) on account of any violation or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or
other constituent documents), or
(c) any agreement or instrument to which it is party or
by which any of them or any of their respective Subsidiaries is a
party or by which any of them or any of their respective properties
(now owned or hereafter acquired) may be subject or bound),
except for matters which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
SECTION 5.08. FINANCIAL ACCOUNTING PRACTICES. The Company shall, and
shall cause each of its Subsidiaries to, keep proper books of record and account
in accordance with normal business practice in which full and appropriate
entries shall be made of all dealings or transactions in relation to its
business and activities.
SECTION 5.09. USE OF PROCEEDS. The Borrowers shall apply the
proceeds of Loans and Letters of Credit hereunder for the general corporate
purposes of the Company and its Subsidiaries. No Borrower shall use the proceeds
of any Loans and Letters of Credit hereunder directly or indirectly for any
unlawful purpose or in any manner inconsistent with any other provision of any
Loan Document.
SECTION 5.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Company,
each of the other Borrowers and each of the Company's other Significant
Subsidiaries shall continue to engage in substantially the same lines of
business conducted and operated during the present and preceding fiscal year and
reasonably related extensions thereof, and the Company shall not, and shall not
permit any of the other Borrowers or any other Significant Subsidiary to,
substantially engage in any other unrelated businesses.
SECTION 5.11. CONSOLIDATED TAX RETURN. The Company shall not, and
shall not suffer any of its Subsidiaries to, file or consent to the filing of
any consolidated income tax return with any Person other than Parent, Foreign
Holdings, the Company and its Subsidiaries.
SECTION 5.12. FISCAL YEAR. The Company shall not, and shall not
suffer any of its Subsidiaries to, change its fiscal year or fiscal quarter
except in accordance with GAAP.
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SECTION 5.13. ERISA. The Company shall, and shall cause each of its
Subsidiaries to, as soon as possible and, in any event, within 10 days after the
Company knows or has reason to know that a Reportable Event has occurred with
respect to a Pension Plan, that a transaction prohibited under ERISA, the Code
or a foreign law of similar nature has occurred resulting in a material
liability to a Benefit Plan, the Company or any of its Subsidiaries (or any
entity which they have an obligation to indemnify), that an accumulated funding
deficiency has been incurred or an application is to be or has been made to the
Secretary of the Treasury for a waiver of the minimum funding standard with
respect to an accumulation funding deficiency of $1,000,000 or more, that a
failure to make timely contributions to a Pension Plan may give or has given
rise to a lien in a material amount, that an amendment to a Pension Plan may
require or requires the granting of a security interest in a material amount,
that proceedings are likely to be or have been instituted to terminate a Pension
Plan, or that the Company, any other Borrower, any of the Company's other
Significant Subsidiaries or a member of their respective Controlled Group will
or may incur any material liability under Section 502(g) or any analogous
provision relating to Section 515 or Title IV of ERISA, the Company will deliver
to the Administrative Agent a certificate of a Responsible Officer setting forth
details as to such occurrence and action, if any, which the Company, such
Subsidiary or the respective member of their Controlled Group is required or
proposes to take, together with any notices required or proposed to be filed
with or by the Company, such Subsidiary or the member of their respective
Controlled Group, the PBGC or the plan administrator with respect thereto. For
purposes of this Section, an item is material if alone or taken with any other
item in this Section, it results in a liability of $1,000,000 or more. Copies of
any notices required to be delivered to the Administrative Agent hereunder shall
be delivered not later than 10 days after the later of the date such notice has
been filed with the IRS or the PBGC or received by the Company, any of its
Subsidiaries or members of their respective Controlled Group. Upon the request
of the Administrative Agent or any of the Lenders made from time to time, the
Company will deliver a copy of the most recent actuarial report and annual
report completed with respect to any Benefit Plan and any other financial
information the Company has with respect to the Benefit Plan.
SECTION 5.14. RATINGS. In the event that the Company has no rated
senior unsecured long-term debt outstanding, the Company will request Xxxxx'x to
assign the Company a "hypothetical senior long-term debt rating" and will
request S&P to assign the Company an "issuer credit rating," such request to be
made (i) not later than thirty days after delivery to the Administrative Agent
of the financial statements called for by Section 5.01(a) hereof and, in
addition, (ii) not later than thirty days after instructions by the Required
Lenders to make such request, which instructions may be given no more frequently
than once during any six-month period.
SECTION 5.15. GUARANTY. Obligations hereunder shall at all times be
guaranteed by Parent, Foreign Holdings, and Holdcos by the execution and
delivery of this Agreement by such parties. If at the end of any fiscal quarter
of the Company, (i) the unconsolidated assets of the Company plus the assets of
the Borrowing Subsidiaries and the Guarantors (other than Parent and Foreign
Holdings) constitute less than 90% of the consolidated domestic total assets of
the Company and its consolidated Subsidiaries or (ii) the unconsolidated net
income for such fiscal quarter of the Company plus the net income for such
fiscal quarter of the Borrowing Subsidiaries and the Guarantors (other than
Parent and Foreign Holdings) constitute less than 90% of the consolidated
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domestic net income of the Company and its consolidated Subsidiaries for such
quarter, then the Company shall designate as Guarantors hereunder (x) one or
more Material Domestic Subsidiaries and (y) to the extent the designation
provided in clause (x) does not make up the short-fall in clause (i) or (ii)
above, one or more other domestic Subsidiaries, as Guarantors hereunder, so that
assets and net income of such one or more Material Domestic Subsidiaries and
such one or more other domestic Subsidiaries, together with each such items of
the Company and the then existing Borrowing Subsidiaries and Guarantors,
constitute 90% of the consolidated domestic total assets and net income,
respectively of the Company and its consolidated Subsidiaries. The Company shall
deliver to the Administrative Agent, together with the Quarterly Compliance
Certificate required under Section 5.01(c), a schedule setting forth the assets
and net income of each Borrowing Subsidiary, each Guarantor and the consolidated
domestic assets and the consolidated domestic net income of the Company and its
consolidated Subsidiaries. If a Material Domestic Subsidiary or any other
domestic Subsidiary is required to become a Guarantor, unless the Required
Lenders otherwise agree, the Company shall, promptly (i) cause such Subsidiary
to execute a Subsidiary Guaranty Agreement, (ii) cause such Subsidiary to
deliver documentation similar to that described in Sections 4.01(b) and (d)
relating to the authorization for, execution and delivery of, and validity of
such Subsidiary's obligations as a Guarantor under the Guaranty in form and
substance satisfactory to the Administrative Agent. Without limiting the
restrictions set forth in Section 6.07, a merger of a Guarantor into a Borrower
or into another Guarantor shall not constitute a violation of this Section 5.9
so long as the Guaranty of the surviving entity, in the case of a merger into
another Guarantor, remains in effect. Except as otherwise required or permitted
by the Indenture, the Borrowing Subsidiaries' and the Guarantors' (other than
Parent and Foreign Holdings) obligations hereunder shall at all times be secured
by the pledge of the "Collateral" (as defined in the Pledge Agreement) pursuant
to the Pledge Agreement.
ARTICLE VI
NEGATIVE COVENANTS
The Company hereby covenants to each Agent and each Lender as
follows:
SECTION 6.01. FINANCIAL COVENANTS. (a) CONSOLIDATED FIXED CHARGES
COVERAGE RATIO. The Consolidated Fixed Charges Coverage Ratio shall be greater
than (i) 2.25 to 1 for each period of four consecutive fiscal quarters of the
Company ending after the Closing Date and prior to January 1, 2001; (ii) 2.0 to
1 for each period of four consecutive fiscal quarters of the Company ending
after January 1, 2001 and prior to January 1, 2002, and (iii) 2.1 to 1 for each
period of four consecutive fiscal quarters of the Company thereafter; PROVIDED,
HOWEVER, for the period of four consecutive fiscal quarters of the Company
ending September 24, 1999, the Consolidated Fixed Charges Coverage Ratio shall
be greater than 1.75 to 1.0 rather than 2.25 to 1 for such period. For the
purpose of this Section 6.01(a) only, all calculations of (i) Consolidated
Adjusted Interest Expense shall exclude all interest expense associated with the
obligations of Xxxxxx Xxxxxxx Corporation (or any successor thereto) in respect
of the $95,000,000 Series 1999C Bonds and $18,000,000 Series 1999D Bonds under
the Exit Funding Agreement for the periods occurring after the date of the Exit
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Funding Agreement and through and including the end of Xxxxxx Xxxxxxx
Corporation's (or any successor thereto) second fiscal quarter in its fiscal
year 2001 to the extent that such interest would otherwise have been included as
Consolidated Adjusted Interest Expense and (ii) Consolidated Adjusted EBITDAR
shall exclude from the calculation thereof a non-cash, pre-tax charge not to
exceed $75,000,000, in the aggregate, related to the sale (including an asset or
stock sale) of Xxxxxx Xxxxxxx Power Systems, a Subsidiary of the Company.
(b) CONSOLIDATED LEVERAGE RATIO. The Consolidated Leverage Ratio
shall not exceed (i) at the end of the fiscal quarters of the Company ending
after the Closing Date and prior to January 1, 2001, 0.50 to 1.00, (ii) at the
end of the first fiscal quarter of the Company in 2001, 0.45 to 1.00, (iii) at
the end of the second and third fiscal quarters of the Company in 2001, 0.43 to
1.00, and (iv) at the end of each fiscal quarter of the Company thereafter, 0.40
to 1.0; PROVIDED, HOWEVER, that in the calculation of Indebtedness solely for
purposes of this Section 6.01(b), (i) Consolidated Indebtedness shall not
include (to the extent otherwise included therein) indebtedness for money
borrowed incurred solely for the purpose of hedging foreign currency exchange
risk for which the sole source of repayment is a cash collateral deposit, (ii)
Consolidated Indebtedness shall not include Indebtedness of any Special Purpose
Subsidiary, (iii) with respect to Guarantees of obligations of any Special
Purpose Subsidiary other than Guarantees solely for completion or operation of
the related Project, an amount shall be included in Consolidated Indebtedness of
the Company equal to the lesser of the Indebtedness of such Special Purpose
Subsidiary so Guaranteed and the amount of such Guarantee, (iv) with respect to
Guarantees of completion or operation obligations of any Special Purpose
Subsidiary, an amount shall be included in Consolidated Indebtedness of the
Company equal to 25% of the lesser of the outstanding amount of the Indebtedness
of such Special Purpose Subsidiary so Guaranteed and the maximum amount payable
by the Company pursuant to such Guarantee (after giving effect to (and without
duplication of) any Guarantee of obligations of such Special Purpose
Subsidiaries included in clause (iii) above) until completion of the Project and
operation thereof in accord with the operating standards required under the
terms of the financing agreement of the Indebtedness of such Special Purpose
Subsidiary, after which time no amount shall be included in such calculation,
except that if at any time such Special Purpose Subsidiary is in default of its
obligations (until such default is remedied or cured) under the financing
agreement of such Indebtedness and the Company is obligated to make payments
pursuant to such Guarantee, the amount to be included shall be 25% of the
outstanding amount of the Indebtedness of such Special Purpose Subsidiary, and
(v) Consolidated Indebtedness shall be calculated as if the Trust Preferred was
not outstanding; and PROVIDED, FURTHER, that in the calculation of Consolidated
Indebtedness of the Company solely for the purposes of this Section 6.01(b), an
amount shall be included on account of Letters of Credit equal to monetary
damages, if any, which are due but unpaid according to the terms of any Project
documents to which the beneficiary of such Letter of Credit is entitled. For the
purpose of this Section 6.01(b) only and in addition to the foregoing, all
calculations of the Consolidated Leverage Ratio shall exclude (i) from the
definition of Consolidated Indebtedness the obligations of Xxxxxx Xxxxxxx
Corporation (or any successor thereto) in respect of the $95,000,000 Series
1999C Bonds and $18,000,000 Series 1999D Bonds under the Exit Funding Agreement
and (ii) other comprehensive income, as defined by FASB Statement of Financial
Accounting Standard No. 130.
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(c) For the purpose of Sections 6.01(a) and (b) only, all
calculations of the Consolidated Fixed Charges Coverage Ratio and the
Consolidated Leverage Ratio shall exclude up to $37,652,000 pre-tax charges to
earnings that were taken by Xxxxxx Xxxxxxx Corporation, or any successor
thereto, in its third fiscal quarter of 1999 for cost realignment and up to
$227,200,000 pre-tax charges to earnings taken by Xxxxxx Xxxxxxx Corporation, or
any successor thereto, in its third fiscal quarter and to be taken in its fourth
fiscal quarter of 1999 associated with the Xxxxxxx Facility.
SECTION 6.02. LIENS. The Company shall not and shall not permit any
of its Subsidiaries to create, or assume or permit to exist, any Lien on any of
the properties or assets of the Company or any of its Subsidiaries (other than
any Special Purpose Subsidiary), whether now owned or hereafter acquired except:
(a) ERISA Liens and Liens not otherwise permitted under
this Section 6.02 securing Indebtedness and other obligations of the
Company or any of its Subsidiaries which Indebtedness and other
obligations and, in the case of ERISA Liens, the amount of the ERISA
Liens, in the aggregate at any time outstanding, does not exceed 15%
of the Consolidated Net Worth of the Company;
(b) Liens by the Company or a Subsidiary thereof on
property or assets securing all or part of the purchase price or
construction cost thereof (hereinafter referred to individually as a
"PURCHASE MONEY SECURITY INTEREST"); PROVIDED, HOWEVER, that:
(i) Such Purchase Money Security Interest is
created before or within 180 days after the purchase of, or
the completion of construction of, such property or assets
by the Company or such Subsidiary;
(ii) The transaction in which any Purchase
Money Security Interest is proposed to be created is not
then prohibited by this Agreement;
(iii) Any Purchase Money Security Interest
shall attach only to the property or asset so acquired or
constructed in such transaction (and the proceeds thereof)
or any addition thereto or replacement thereof and shall
not extend to or cover any other assets or properties of
the Company or any of its Subsidiaries; and
(iv) The Indebtedness secured or covered by any
Purchase Money Security Interest together with any other
Indebtedness secured by the property or asset acquired
shall not exceed 100% of the lesser of the cost or fair
market value of the property or asset acquired or
constructed and shall not be renewed, extended or prepaid
from the proceeds of any borrowing by the Company or any of
its Subsidiaries;
(c) Liens on the property or assets of the Company and
its Subsidiaries in existence immediately prior to the Closing Date
as listed on Schedule 6.02 hereto, PROVIDED that no such Lien is
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spread to cover any additional property after the Closing Date and
the amount of Indebtedness secured thereby is not increased, PROVIDED
that the maturity of such Indebtedness may be extended or renewed;
(d) Liens on all or any part of the property or the
assets of any Subsidiary in favor of the Company or any other
Subsidiary (other than a Special Purpose Subsidiary) as security for
the Indebtedness owing to the Company or such other Subsidiary;
(e) Liens (whether or not assumed) existing on property
or assets at the time of purchase thereof by the Company or any
Subsidiary, PROVIDED that: (i) such Lien is not created in
contemplation of the purchase of such property by the Company or such
Subsidiary, (ii) such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof and (iii) the
aggregate amount secured by all Liens permitted by this Section
6.02(e) shall not at any time exceed $10,000,000; and
(f) Permitted Liens.
SECTION 6.03. INDEBTEDNESS. The Company shall not, and shall not
permit any Subsidiary to, at any time create, incur, assume or suffer to exist
or have outstanding any Indebtedness if, immediately after giving effect to such
Indebtedness and the receipt and application of any proceeds thereof, there
would exist an Event of Default or Potential Default hereunder, or any
Indebtedness of any domestic Subsidiary (other than a Special Purpose
Subsidiary) other than (i) Indebtedness set forth on Schedule 3.07 hereof and
refinancings and renewals thereof (provided that the amount of such Indebtedness
so refinanced or renewed shall not exceed the lesser of (x) the amount of such
Indebtedness as of the date hereof or (y) the amount of such Indebtedness at the
time of refinancing or renewal), (ii) intercompany Indebtedness between or among
the Company and its Subsidiaries, (iii) Indebtedness of domestic Subsidiaries
(other than Special Purpose Subsidiaries) not otherwise permitted under clauses
(i) or (ii) above which in the aggregate at any time does not exceed $20,000,000
and (iv) this Agreement, the Notes, any Letter of Credit or the Guaranty
hereunder, and the Guarantee of the Company's obligations in connection with
securities issued under the Indenture and the Guarantee of the Parent's
obligation in connection with the Convertible Subordinated Notes (provided such
Guarantee is subordinate to the Company's Obligations hereunder in a manner
satisfactory to the Administrative Agent) and (v) intercompany Indebtedness
between Parent and the Company incurred to advance the proceeds of the
Convertible Subordinated Notes (provided such intercompany Indebtedness is
subordinated to the Company's Obligations hereunder in a manner acceptable to
the Administrative Agent) and the payments on such intercompany Indebtedness
shall be limited to the amount necessary to enable Parent to pay scheduled debt
service payments (principal, interest and premiums) due on the Convertible
Subordinated Notes plus amounts necessary to pay dividends on any stock of
Parent issued pursuant to the conversion feature of the Convertible Subordinated
Notes. Notwithstanding the foregoing, Xxxxxx Xxxxxxx Corporation may create,
incur, assume or suffer to exist obligations with regard to $95,000,000 1999C
Bonds and $18,000,000 1999D Bonds under the Exit Funding Agreement.
SECTION 6.04. LOANS, ADVANCES AND CERTAIN INVESTMENTS. The Company
shall not, and shall not permit any Subsidiary to, at any time make or suffer to
exist or remain outstanding any Investment in any Special Purpose Subsidiary
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other than Investments by the Company and its Subsidiaries in Special Purpose
Subsidiaries which do not exceed, in the aggregate at any time, 50% of the
Company's Consolidated Net Worth. For the purposes of this Section 6.04, the
Company's Consolidated Net Worth shall not include any amount on account of
Xxxxxx Xxxxxxx Corporation's Trust Preferred.
SECTION 6.05. CHANGES IN BUSINESS. The Company shall not, and shall
not permit any other Borrower or any other Significant Subsidiary to, (a)
liquidate or dissolve itself (or suffer any liquidation or dissolution) (other
than into the Company or any other Borrower or any other Significant
Subsidiary), or (b) convey, sell, assign, transfer or otherwise dispose of any
capital stock of or other ownership interest in any Significant Subsidiaries
(other than Special Purpose Subsidiaries) held by it (other than to the Company
or any other Borrower or any other Significant Subsidiary), PROVIDED that (i) so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, the Company may in any fiscal year convey, sell, assign,
transfer or otherwise dispose of capital stock or other ownership interest in
one or more Significant Subsidiaries which did not account for an aggregate of
10% of the consolidated assets of the Company at the end of the prior fiscal
year and (ii) notwithstanding anything to the contrary in this Section 6.05, the
Company may dispose of its ownership interest in the Xxxxxxx Subsidiaries.
SECTION 6.06. AMENDMENT OF CERTAIN DOCUMENTS. The Company shall not,
and shall not permit any other Borrower or any other Significant Subsidiary to,
modify, amend, supplement or terminate, or agree to modify, amend, supplement or
terminate its certificate of incorporation or by-laws or any other constituent
documents, in any manner which would materially and adversely affect the
interests of any of the Lenders hereunder.
SECTION 6.07. MERGERS; ACQUISITIONS. The Company shall not, and
shall not permit any other Borrower or any other of its Significant Subsidiaries
to, merge or consolidate with any Person; PROVIDED, HOWEVER, that the Company or
any other Borrower or any other Significant Subsidiary thereof may merge with
another Person if (i) in the case of a merger involving the Company, the Company
is the surviving corporation, (ii) in the case of a merger involving another
Borrower, such Borrower is the surviving corporation, (iii) in the case of a
merger involving a Significant Subsidiary, or other Subsidiary of the Company,
the surviving corporation shall be a Subsidiary of the Company, and (iv) after
giving effect to such merger no Potential Default or Event of Default would then
exist; and PROVIDED FURTHER that notwithstanding anything to the contrary in
this Section 6.07, the Company may dispose of its ownership interest in the
Xxxxxxx Subsidiaries and the Company may sell any of its other Subsidiaries to a
third party by way of a merger transaction so long as such sale is otherwise
permitted under this Agreement.
SECTION 6.08. ERISA OBLIGATIONS. The Company shall not, and shall
not permit any of its Subsidiaries to, engage in a transaction in connection
with which the Benefit Plans, the Company, any of its Subsidiaries or any entity
which they have an obligation to indemnify could be subject to liability for
either a civil penalty assessed pursuant to Section 502(i) or 502(1) of ERISA or
a tax imposed by Section 4975 of the Code or any other material liability Plan
or Benefit Plan, take any other action with respect to any such Pension Plan or
Benefit Plan if such termination or other action could result in liability, or
take any action or fail to take any action which could result in withdrawal
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liabilities under Title IV of ERISA or liability under Section 502(g) of ERISA
or any analogous provision relating to Section 515 of ERISA; fail to make any
payments on a timely basis which are required under applicable Law (including
Section 412 of the Code) to be paid as contributions to Pension Plans; incur an
accumulated funding deficiency (as defined in Section 302 of ERISA and Section
412 of the Code), whether or not waived, with respect to any Pension Plan; amend
any Pension Plan in a manner which would require the granting of a security
interest to maintain the continued qualification of such Pension Plan under
Section 401(a)(29) of the Code, if, in any case described herein, or together
with any other event described herein, such action, failure to act, event or
transaction would (i) result in an ERISA Lien exceeding the percentage
limitations of Section 6.02(a) or (ii) have a Material Adverse Effect.
SECTION 6.09. PRINCIPAL FOREIGN AFFILIATES. The Company shall not
permit any of its Principal Foreign Affiliates to create, assume or permit to
exist any Indebtedness the terms of which, prior to a payment default
thereunder, would restrict dividends to be paid with respect to the consolidated
net income of such Affiliate for any fiscal year by more than 40% of the
consolidated net income of such Affiliate for such fiscal year. For purposes of
this Section, "Principal Foreign Affiliates" shall mean Xxxxxx Xxxxxxx Limited
(Reading), Xxxxxx Xxxxxxx France, S.A., Xxxxxx Xxxxxxx Italiana, S.p.A., Xxxxxx
Xxxxxxx Iberia, S.A., Xxxxxx Xxxxxxx Energia, S.A. and their respective
successors and any other foreign Affiliate of the Company which in the most
recent fiscal year of the Company accounted for more than 10% of the
consolidated assets of the Company and its Subsidiaries or which accounted for
more than 5% of the consolidated income of the Company and its Subsidiaries for
the most recent fiscal year of the Company; PROVIDED, HOWEVER, that with respect
to such foreign Affiliate created or acquired after the date hereof, if
thereafter such entity, in a fiscal year, accounts for more than 10% of the
consolidated assets of the Company and its Subsidiaries or accounts for more
than 5% of the consolidated income of the Company and its Subsidiaries in such
fiscal year, it shall be deemed to be a Principal Foreign Affiliate for such
fiscal year.
SECTION 6.10. CERTAIN AGREEMENTS. The Company will not become or be
a party to any agreement or instrument relating to Indebtedness for borrowed
money (other than (i) the Exit Funding Agreement, (ii) the Convertible
Subordinated Notes and (iii) agreements and instruments relating to Indebtedness
for borrowed money in an aggregate principal amount not exceeding $15,000,000
(individually or in the aggregate with respect to such agreements and
instruments) at any time outstanding and other than (with respect to debt
securities offered and sold in a public offering in a principal amount not
exceeding $500,000,000 ($175,000,000 of which is outstanding under the Company's
(as successor to Xxxxxx Xxxxxxx Corporation) Trust Preferred)) the Indenture
between the Company (as successor to Xxxxxx Xxxxxxx Corporation) and Xxxxxx
Trust and Savings Bank, as Trustee, as amended and supplemented from time to
time (the "INDENTURE"), filed as an exhibit to the Company's (as successor to
Xxxxxx Xxxxxxx Corporation) Registration Statement on Form S-3 (registration no.
33-61809)) which contains any covenant or event of default which could result in
such Indebtedness becoming or being declared to be due and payable prior to its
stated maturity (including by a requirement for purchase or prepayment) upon the
occurrence of an event or condition which is not an event or condition the
occurrence of which could cause the Loans to become or be declared to be (other
than pursuant to Section 7.01(f) hereto) due and payable prior to their stated
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maturity, unless the Company shall make an "Amendment Offer" (as hereinafter
defined); PROVIDED that this covenant shall not be violated by (i) an agreement
to pay the principal of and interest on such Indebtedness in accordance with its
terms or to provide to the holders of such Indebtedness or an agent or trustee
for such holders any information which the Company is obligated to provide to
the Lender or an Agent hereunder or (ii) any agreement or instrument relating to
Indebtedness on account of Capitalized Lease or secured by Purchase Money
Security Interest, any covenant or event of default of which principally relates
to the use, condition or disposition of the property financed or acquired or
constructed with such Indebtedness. As used herein, an "Amendment Offer" is an
effective offer by the Company to the Administrative Agent to amend this
Agreement, which offer shall be made no later than ten days after the Company
becoming party to an agreement or instrument referred to in the first sentence
of this Section 6.10, to amend this Agreement (without deleting or overriding
any term or provision of this Section 6.10) in a way that the first sentence of
this Section would not otherwise be applicable to such agreement or instrument.
The Administrative Agent, if so instructed by the Required Lenders, shall accept
or decline such Amendment Offer within thirty days thereof, and a failure to so
respond shall be deemed a declination of such Amendment Offer.
SECTION 6.11. RESTRICTED PAYMENTS. The Company shall not, and shall
not suffer or permit any Subsidiary to, declare or make any Stock Payment;
except that (i) any wholly-owned Subsidiary may declare and make dividend
payments or other distributions to the Company or to another wholly-owned
Subsidiary; (ii) any non-wholly-owned Subsidiary may declare and make dividend
payments or other distribution to its shareholders or other equity holders
generally so long as the Company or its respective Subsidiary which owns the
equity interest in the Subsidiary paying such dividends or other distributions
receives at least its proportionate share thereof (based upon its relative
holdings of the equity interest in the Subsidiary paying such dividends or other
distributions and taking into account the relative preferences, if any, of the
various classes of equity interest of such Subsidiary); (iii) the Company and
any Subsidiary may declare and make dividend payments or other distributions, in
each case, payable solely in its stock and (iv) the Company may declare or make
cash Stock Payments to (x) Parent (which initially may be to Foreign Holdings)
in an aggregate amount of up to $11,000,000 per fiscal year to enable Parent to
pay dividends although no such cash dividends may be made pursuant to this
clause (x) if an Event of Default then exists or would result therefrom and (y)
Parent and/or Foreign Holdings in the form of dividends and/or advances to
enable Parent and/or Foreign Holdings to pay their respective taxes, their
respective operating expenses incurred in the ordinary course of business
(including, without limitation, directors' fees and expenses, employee
compensation, governmental fees (including all Securities and Exchange
Commission filing fees), legal accounting and other professional fees and
expenses, indemnities and lease obligations) and similar corporate overhead
costs and expenses.
SECTION 6.12. TRANSACTIONS WITH AFFILIATES. The Company will not,
and will not permit any of its Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of the Company or any of its Subsidiaries, other
than on terms and conditions substantially as favorable to the Company or such
Subsidiary as would be obtainable by the Company or such Subsidiary at the time
in a comparable arm's-length transaction with a Person other than an Affiliate.
Notwithstanding the foregoing, the provisions of this Section 6.12 shall not
prohibit (i) Stock Payments permitted under Section 6.11 hereof, (ii) loans and
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other advances that may from time to time be made to Parent and/or Foreign
Holdings as otherwise permitted hereunder and to directors, officers and/or
employees of the Company or any of its Subsidiaries in the ordinary course of
business, (iii) customary fees paid to directors of the Company and its
Subsidiaries, (iv) the entering into, and making payments under, employment
agreements, employee benefit plans, indemnification provisions and other similar
compensatory arrangements with directors, officers and/or employees of the
Company and its Subsidiaries in the ordinary course of business, (v) Parent,
Foreign Holdings, the Company and/or one or more Subsidiaries of the Company may
enter into arrangements relating to the operation of the on-going administrative
functions of Parent and its consolidated group (including, but not limited to,
tax, benefit plans, human resource functions, stock plans, payroll functions,
and preservation of intellectual property rights and related intellectual
property matters) and (vi) transactions between or among the Company and its
Subsidiaries to the extent that such transactions are not otherwise prohibited
by the terms of this Agreement.
SECTION 6.13. CAPITAL EXPENDITURES. The Company shall not, and shall
not permit any of its Subsidiaries (other than Special Purpose Subsidiaries) to,
make any Capital Expenditures, except that during any fiscal year of the
Company, the Company and its Subsidiaries (other than Special Purpose
Subsidiaries) may make Capital Expenditures so long as the aggregate amount of
such Capital Expenditures does not exceed $75,000,000 in such fiscal year.
"CAPITAL EXPENDITURES" shall mean any expenditure for fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs which
are capitalized in accordance with GAAP and Capitalized Lease Obligations).
SECTION 6.14. LIMITATION ON MODIFICATIONS OF TERMS OF CERTAIN
INDEBTEDNESS. The Company and the Parent will not, and will not permit any of
their Subsidiaries to amend or modify, or permit the amendment or modification
of, (i) Article X of the Indenture for the Convertible Subordinated Notes or
(ii) any subordination provision (and the related definitions therein) contained
in the Indenture for the Convertible Subordinated Notes or the Exit Funding
Agreement, which is in any way adverse to the interests of the Lenders without
the consent of the Required Lenders.
ARTICLE VII
DEFAULTS
SECTION 7.01. EVENTS OF DEFAULT. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrowers shall fail to pay when due principal of any Loan or
of any Letter of Credit Obligation.
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(b) The Borrowers shall fail to pay when due interest on any Loan,
any fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and such failure shall have continued for a period of five
Business Days.
(c) Any representation or warranty made or deemed made by the Company
or any Subsidiary of the Company in or pursuant to any Loan Document or in any
certificate delivered thereunder, or any statement made by the Company or any
Subsidiary of the Company in any financial statement, certificate, report,
exhibit or document furnished by the Company or any Subsidiary of the Company to
any Agent or any Lender pursuant to or in connection with any Loan Document,
shall prove to have been false or misleading in any material respect as of the
time when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
(d) Any Borrower shall default in the performance or observance of
any covenant contained in Article VI hereof which shall remain unremedied for a
period of five days after the occurrence thereof or any applicable Borrower
shall default in the observance of any covenant contained in Section 5.01(f)
hereof.
(e) Any Borrower shall default in the performance or observance of
any other covenant, agreement or duty under this Agreement or any other Loan
Document and such default shall have continued for a period of 30 days after
notice of such default from the Administrative Agent to the Company.
(f) (i) Any Borrower or any Guarantor (other than a Special Purpose
Subsidiary,) or any other Significant Subsidiary (other than a Special Purpose
Subsidiary) of the Company shall fail to perform or observe any term, condition
or covenant of any bond, note, debenture, loan or letter of credit agreement,
indenture, guaranty, trust agreement, mortgage or similar instrument to which
any Borrower or any such Guarantor (other than Special Purpose Subsidiary) or
any such other Significant Subsidiary (other than a Special Purpose Subsidiary)
is a party or by which it is bound, or by which any of its properties or assets
may be affected (a "DEBT INSTRUMENT"), so that, as a result of any such failure
to perform, the Indebtedness included therein or secured or covered thereby may
at the time be declared due and payable prior to the date on which such
Indebtedness would otherwise become due and payable; or (ii) any event or
condition referred to in any Debt Instrument shall occur or fail to occur, so
that, as a result thereof, the Indebtedness included therein or secured or
covered thereby may at such time be declared due and payable prior to the date
on which such Indebtedness would otherwise become due and payable; or (iii) any
Borrower or any Guarantor (other than Special Purpose Subsidiary) or any other
Significant Subsidiary of the Company (other than any Special Purpose
Subsidiary) shall fail to pay any Indebtedness when due, pursuant to demand
under any Debt Instrument or otherwise, subject to any applicable grace period
or shall fail to make any payment required to be made under the Exit Funding
Agreement when due; PROVIDED, HOWEVER, that the provisions of this Section
7.01(f) shall not be applicable to Indebtedness or any Debt Instrument or Debt
Instruments which relate to or evidence Indebtedness which, on the date this
Section 7.01(f) would otherwise be applicable thereto, is in the principal
amount of less than $10,000,000 (or its equivalent in any foreign currencies) in
the aggregate.
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(g) One or more final, non-appealable judgments for the payment of
money shall have been entered against any Borrower or any other Significant
Subsidiary (other than a Special Purpose Subsidiary), which judgment or
judgments exceed $15,000,000 (or its equivalent in any foreign currencies) in
the aggregate, and such judgment or judgments shall have remained unpaid,
undischarged and unstayed for a period of sixty consecutive days.
(h) One or more final, non-appealable writs or warrants of
attachment, garnishment, execution, distraint or similar process exceeding in
value the aggregate amount of $15,000,000 (or its equivalent in any foreign
currencies) shall have been issued against any Borrower or any other Significant
Subsidiary (other than a Special Purpose Subsidiary) or any of their respective
properties and shall have remained undischarged and unstayed for a period of
sixty consecutive days.
(i) This Agreement or any term or provision hereof shall cease to be
in full force and effect, or any Credit Party shall, or shall purport to,
terminate, repudiate, declare voidable or void or otherwise contest, this
Agreement or any term or provision thereof or any obligation or liability of the
Credit Parties hereunder.
(j) (i) Any Pension Plan is terminated pursuant to Section 4041 or
4042 of ERISA and the benefit liabilities exceed the assets based upon the
assumptions used by the PBGC on plan termination by an amount such that the
termination of such Pension Plan would have a Material Adverse Effect; (ii) the
Company or any of its Subsidiaries (or a member of their respective Controlled
Group) incur a liability under Section 4062, 4063 or 4064 of ERISA for an amount
that such liability would materially and adversely affect the financial
condition of the Company and its Subsidiaries taken as a whole; or (iii) any
other event or events shall occur with respect to any employee benefit plan
whether or not subject to ERISA which individually or in the aggregate results
in a Material Adverse Effect.
(k) The obligations of the Company hereunder shall at any time cease
to be (i) "Senior Debt" as defined in the Exit Funding Agreement or (ii) "Senior
Debt" or "Designated Senior Debt" as defined in the Indenture for the
Convertible Subordinated Notes.
(l) A proceeding shall have been instituted in respect of any
Borrower or any other Significant Subsidiary (other than a Special Purpose
Subsidiary)
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing a
finding that such Person is insolvent or a similar declaration or
finding, or seeking dissolution, winding-up, charter revocation or
forfeiture, liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to such Person, its
assets or its debts under any Law relating to bankruptcy, insolvency,
relief of debtors or protection of creditors, termination of legal
entities or any other similar Law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee,
liquidator, assignee, sequestrator or other custodian for such
Person or for all or any substantial part of its property
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and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of 60 consecutive days.
(m) Any Borrower or any other Significant Subsidiary (other than a
Special Purpose Subsidiary) shall voluntarily suspend transaction of its
business; shall make a general assignment for the benefit of creditors; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(l)(i) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall institute
(or fail to controvert in a timely and appropriate manner) a proceeding
described in Section 7.01(l)(ii) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such appointment or to
the taking of possession by any such custodian of all or any substantial part of
its or his property; shall dissolve, wind-up, revoke or forfeit its charter (or
other constituent documents) or liquidate itself or any substantial part of its
property; or shall take any corporate or similar action in furtherance of any of
the foregoing.
SECTION 7.02. CONSEQUENCES OF AN EVENT OF DEFAULT. (a) If an Event
of Default specified in subsections (a) through (k) of Section 7.01 hereof, or
in subsections (l) and (m) with respect to a Significant Subsidiary, shall occur
and be continuing or shall exist, then, in addition to all other rights and
remedies which any Agent or any Lender may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Lenders shall be under no
further obligation to make Loans hereunder and the LC Issuer shall be under no
further obligation to Issue Letters of Credit hereunder, and the Administrative
Agent may, and upon the written request of the Required Lenders shall, by notice
to the Company, from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be
immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further
notice of any kind, all of which are hereby waived, and an action
therefor shall immediately accrue and demand the Company immediately
to Cash Collateralize the full amount then available for drawing
under any and all outstanding Letters of Credit.
(b) If an Event of Default specified in subsection (l) or (m) of
Section 7.01 hereof shall occur or exist with respect to any Borrower, then, in
addition to all other rights and remedies which any Agent or any Lender may have
hereunder or under any other Loan Document, at law, in equity or otherwise, the
Commitments shall automatically terminate and the Lenders shall be under no
further obligation to make Loans and the LC Issuer shall be under no further
obligation to Issue Letters of Credit, and the unpaid principal amount of the
Loans, interest accrued thereon and all other Obligations shall become
immediately due and payable and each applicable Borrower shall immediately Cash
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Collateralize the full amount then available for drawing under all outstanding
Letters of Credit, without presentment, demand, protest or notice of any kind,
all of which are hereby waived, and an action therefor shall immediately accrue.
ARTICLE VIII
THE AGENTS
SECTION 8.01. APPOINTMENT. Each Lender hereby irrevocably appoints
Bank of America National Trust and Savings Association to act as Administrative
Agent for such Lender under this Agreement and the other Loan Documents. Each
Lender hereby irrevocably authorizes the Administrative Agent to take such
action on behalf of such Lender under the provisions of this Agreement and the
other Loan Documents, and to exercise such powers and to perform such duties, as
are expressly delegated to or required of the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto. Bank of America National Trust and Savings Association hereby agrees to
act as Administrative Agent on behalf of the Lenders on the terms and conditions
set forth in this Agreement and the other Loan Documents, subject to its right
to resign as provided in Section 8.10 hereof. Each Lender hereby irrevocably
authorizes the Administrative Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Administrative Agent. Each Lender agrees that the
rights and remedies granted to the Administrative Agent under the Loan Documents
shall be exercised exclusively by the Administrative Agent, and that no Lender
shall have any right individually to exercise any such right or remedy, except
to the extent expressly provided herein or therein.
SECTION 8.02. GENERAL NATURE OF AGENTS' DUTIES. Notwithstanding
anything to the contrary elsewhere in this Agreement or in any other Loan
Document:
(a) No Agent shall have duties or responsibilities except
those expressly set forth in this Agreement and the other Loan
Documents, and no implied duties or responsibilities on the part of
any Agent shall be read into this Agreement or any Loan Document or
shall otherwise exist.
(b) The duties and responsibilities of each Agent under
this Agreement and the other Loan Documents shall be mechanical and
administrative in nature, and no Agent shall have a fiduciary
relationship in respect of any Lender.
(c) Each Agent is and shall be solely the agent of the
Lenders. No Agent assumes, and shall not at any time be deemed to
have, any relationship of agency or trust with or for, or any other
duty or responsibility to, any Borrower, any other Subsidiary of the
Company or any other Person (except only for its relationship as
agent for, and its express duties and responsibilities to, the
Lenders as provided in this Agreement and the other Loan Documents).
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(d) No Agent shall be under any obligation to take any
action hereunder or under any other Loan Document if such Agent
believes in good faith after consultation with counsel that taking
such action may conflict with any Law or any provision of this
Agreement or any other Loan Document, or may require such Agent to
qualify to do business in any jurisdiction where it is not then so
qualified.
SECTION 8.03. EXERCISE OF POWERS. Each Agent shall take any action
of the type specified in this Agreement or any other Loan Document as being
within such Agent's rights, powers or discretion in accordance with directions
from the Required Lenders (or, to the extent this Agreement or such Loan
Document expressly requires the direction or consent of some other Person or set
of Persons, then instead in accordance with the directions of such other Person
or set of Persons). In the absence of such directions, each Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case such Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. No Agent shall have any liability to any Person as a result of (x) any
Agent acting or refraining from acting in accordance with the directions of the
Required Lenders (or other applicable Person or set of Persons), (y) any Agent
refraining from acting in the absence of instructions to act from the Required
Lenders (or other applicable Person or set of Persons), whether or not such
Agent has discretionary power to take such action, or (z) any Agent taking
discretionary action it is authorized to take under this Section.
SECTION 8.04. CERTAIN PROVISIONS. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) No Agent shall be liable for any action taken or
omitted to be taken by it under or in connection with this Agreement
or any other Loan Document, unless caused by its own gross negligence
or willful misconduct.
(b) No Agent shall be responsible for (i) the execution,
delivery, effectiveness, enforceability, genuineness, validity or
adequacy of this Agreement or any other Loan Document, (ii) any
recital, representation, warranty, document, certificate, report or
statement in, provided for in, or received under or in connection
with, this Agreement or any other Loan Document or (iii) any failure
of any Borrower or any other Subsidiary of the Company or Lender to
perform any of their respective obligations under this Agreement or
any other Loan Document.
(c) No Agent shall be under any obligation to ascertain,
inquire or give any notice relating to (i) the performance or
observance of any of the terms or conditions of this Agreement or any
other Loan Document on the part of any Borrower or any other
Subsidiary of the Company, (ii) the business, operations, condition
(financial or otherwise) or prospects of any Borrower or any other
Person, or (iii) except to the extent set forth in Section 8.05(f)
hereof, the existence of any Event of Default or Potential Default.
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(d) No Agent shall be under any obligation, either
initially or on a continuing basis, to provide any Lender with any
notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports
and other information expressly required by this Agreement or any
other Loan Document to be furnished by such Agent to such Lender.
SECTION 8.05. ADMINISTRATION BY THE AGENTS. (a) Any Agent may rely
in good faith upon any notice or other communication of any nature (written or
oral, including but not limited to telephone conversations, whether or not such
notice or other communication is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the proper
party or parties, and no Agent shall have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) Each Agent may consult with legal counsel (including, without
limitation, in-house counsel for such Agent or in-house or other counsel for any
Borrower), independent public accountants and any other experts selected by it
from time to time, and such Agent shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts.
(c) Each Agent may conclusively rely upon the truth of the statements
and the correctness of the opinions expressed in any certificates or opinions
furnished to such Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever any Agent shall deem it necessary or desirable
that a matter be proved or established with respect to any Borrower or any
Lender, such matter may be established by a certificate of such Borrower or
Lender, as the case may be, and such Agent may conclusively rely upon such
certificate (unless other evidence with respect to such matter is specifically
prescribed in this Agreement or another Loan Document).
(d) Any Agent may fail or refuse to take any action unless it shall
be indemnified to its reasonable satisfaction from time to time against any and
all amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against such Agent by reason of
taking or continuing to take any such action.
(e) Any Agent may perform any of its duties under this Agreement or
any other Loan Document by or through agents or attorneys-in-fact. No Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in fact selected by it with reasonable care.
(f) No Agent shall be deemed to have any knowledge or notice of the
occurrence of any Event of Default or Potential Default unless such Agent has
actual knowledge or has received notice from a Lender or the Company referring
to this Agreement, describing such Event of Default or Potential Default, and
stating that such notice is a "notice of default." If any Agent receives such a
notice, such Agent shall give prompt notice thereof to the other Agent and each
Lender.
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SECTION 8.06. LENDER NOT RELYING ON AGENTS OR OTHER LENDERS. Each
Lender acknowledges as follows:
(a) No Agent nor any other Lender has made any
representations or warranties to it, and no act taken hereafter by
any Agent or any other Lender shall be deemed to constitute any
representation or warranty by such Agent or such other Lender to it.
(b) It has, independently and without reliance upon any
Agent or any other Lender, and based upon such documents and
information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the
other Loan Documents.
(c) It will, independently and without reliance upon any
Agent or any other Lender, and based upon such documents and
information as it shall deem appropriate at the time, make its own
decisions to take or not take action under or in connection with this
Agreement and the other Loan Documents.
SECTION 8.07. INDEMNIFICATION. Each Lender agrees to reimburse and
indemnify each Agent and its directors, officers, employees and agents (to the
extent not reimbursed by any Borrower and without limitation of the obligations
of such Borrower to do so), Pro Rata, from and against any and all amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for such Agent or such
other Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against such Agent or such other Person as a result of,
or arising out of, or in any way related to or by reason of, this Agreement, any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan or Letter of Credit, PROVIDED that no
Lender shall be liable for any portion of such amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting solely from the gross negligence or willful
misconduct of such Agent or such other Person, as finally determined by a court
of competent jurisdiction.
SECTION 8.08. AGENTS IN THEIR INDIVIDUAL CAPACITIES. With respect to
its Commitments and the obligations owing to it, each Agent shall have the same
rights and powers under this Agreement and each other Loan Document as any other
Lender and may exercise the same as though it were not an Agent, and the terms
"Lenders," "holders of Notes" and like terms shall include each Agent in its
individual capacity as such. Each Agent and its affiliates may, without
liability to account, make loans to, accept deposits from, acquire debt or
equity interests in, act as trustee under indentures of, and engage in any other
business with, any Borrower and any stockholder, Subsidiary or Affiliate of the
Company, as though such Agent were not an Agent hereunder.
SECTION 8.09. HOLDERS OF NOTES. Each Agent may deem and treat the
Lender which is payee of a Note as the owner and holder of such Note for all
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purposes hereof unless and until a Transfer Supplement with respect to the
assignment or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 10.14 hereof. Any authority, direction or
consent of any Person who at the time of giving such authority, direction or
consent is shown in the Register as being a Lender shall be conclusive and
binding on each present and subsequent holder, transferee or assignee of any
Note or Notes payable to such Lender or of any Note or Notes issued in exchange
therefor.
SECTION 8.10. SUCCESSOR AGENTS. Any Agent may resign at any time by
giving 30 days' written notice thereof to the Lenders and the Company. Any Agent
may be removed by the Required Lenders at any time by giving 10 days' prior
written notice thereof to such Agent, the other Lenders and the Company. Upon
any such resignation or removal, the Company (acting on behalf of each Borrower)
shall have the right to appoint a successor Agent; PROVIDED, that the Required
Lenders or the remaining Agents shall have the right, acting reasonably, to
disapprove such successor Agent. If no successor Agent shall have been so
appointed and consented to, and shall have accepted such appointment, within 30
days after such notice of resignation or removal, then any of the remaining
Agents shall succeed to the obligations of such Agent hereunder. Each successor
Agent shall be a commercial bank or trust company organized or licensed under
the laws of the United States of America or any State thereof and having a
combined capital and surplus of at least $1,000,000,000. Upon the acceptance by
a successor Agent of its appointment as Agent hereunder, such successor Agent
shall thereupon succeed to and become vested with all the properties, rights,
powers, privileges and duties of the former Agent, without further act, deed or
conveyance. Upon the effective date of resignation or removal of a retiring
Agent, such Agent shall be discharged from its duties under this Agreement and
the other Loan Documents, but the provisions of this Agreement shall inure to
its benefit as to any actions taken or omitted by it while it was Agent under
this Agreement. If and so long as no successor Agent shall have been appointed,
then any notice or other communication required or permitted to be given by the
retiring Agent shall be sufficiently given if given by the Required Lenders, all
notices or other communications required or permitted to be given to the Agent
shall be given to each Lender, and all payments to be made to the retiring Agent
shall be made directly to such Borrower or Lender for whose account such payment
is made.
SECTION 8.11. CALCULATIONS. No Agent shall be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender to whom payment was due
but not made shall be to recover from the other Lenders any payment in excess of
the amount to which they are determined to be entitled or, if the amount due was
not paid by any Borrower, to recover such amount from such Borrower and the
Company.
SECTION 8.12. FUNDING BY ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified in writing by any Lender not later
than the close of business on the day before the day on which Loans are
requested by the Company (acting on behalf of the Borrowers) to be made that
such Lender will not make its ratable share of such Loans, the Administrative
Agent may assume that such Lender will make its ratable share of the Loans, and
in reliance upon such assumption the Administrative Agent may (but in no
circumstances shall be required to) make available to the applicable Borrower a
corresponding amount. If and to the extent that any Lender fails to make such
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payment to the Administrative Agent on such date, such Lender shall pay such
amount on demand (or, if such Lender fails to pay such amount on demand, the
Borrowers shall pay such amount on demand), together with interest, for the
Administrative Agent's own account, for each day from and including the date of
the Administrative Agent's payment to and including the date of repayment to the
Administrative Agent (before and after judgment) at the Federal Funds Effective
Rate for the first day and thereafter at the rate or rates per annum applicable
to such Loans. All payments to the Administrative Agent under this Section shall
be made to the Administrative Agent at its Office in Dollars in funds
immediately available at such Office, without set-off, withholding, counterclaim
or other deduction of any nature.
SECTION 8.13. SYNDICATION AGENT AND DOCUMENTATION AGENT. Nothing in
this Agreement shall impose upon the Syndication Agent or the Documentation
Agent, in their respective capacities as such, any duty or responsibility
whatsoever.
ARTICLE IX
GUARANTY
SECTION 9.01. THE GUARANTY. In order to induce the Lenders to enter
into this Agreement and to extend credit hereunder to the Borrowers and in
recognition of the direct benefits to be received by each Borrower and each
Guarantor from the proceeds of the Loans and the Letters of Credit to any
Borrower, each Guarantor hereby agrees with the Lenders as follows: each
Guarantor hereby unconditionally and irrevocably guarantees as primary obligor
and not merely as surety the full and prompt payment when due, whether upon
maturity, by acceleration or otherwise, of any and all of the Guaranteed
Obligations to the Creditors. If any or all of the Guaranteed Obligations to the
Creditors becomes due and payable hereunder, each Guarantor unconditionally
promises to pay such Guaranteed Obligations to the Creditors in the same
currency in which such Guaranteed Obligations are denominated, or order, on
demand, together with any and all reasonable expenses which may be incurred by
the Administrative Agent or the Creditors in collecting any of the Guaranteed
Obligations.
SECTION 9.02. BANKRUPTCY. Additionally, each Guarantor
unconditionally and irrevocably guarantees the payment of any and all of the
Guaranteed Obligations to the Creditors whether or not then due or payable by
any Borrower upon the occurrence in respect of such Borrower of any of the
events specified in Section 7.01(l) or (m), and unconditionally and irrevocably
promises to pay such Guaranteed Obligations to the Creditors, or order, on
demand, in the same currency in which such Guaranteed Obligations are
denominated.
SECTION 9.03. NATURE OF LIABILITY. The liability of each Guarantor
hereunder is exclusive and independent of any security for or other guaranty of
the Guaranteed Obligations whether executed by such Guarantor, any other
guarantor or by any other party, and the liability of each Guarantor hereunder
shall not be affected or impaired by (a) any direction as to application of
payment by any Borrower or by any other party, or (b) any other continuing or
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations of any Borrower, or (c) any payment on or
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in reduction of any such other guaranty or undertaking, or (d) any dissolution,
termination or increase, decrease or change in personnel by any Borrower, or (e)
any payment made to the Administrative Agent or the other Creditors on the
indebtedness which the Administrative Agent or such other Creditors repay any
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding (the Guaranty shall be reinstated
in the case of any such disgorgement), and each Guarantor waives any right to
the deferral or modification of its obligations hereunder by reason of any such
proceeding.
SECTION 9.04. INDEPENDENT OBLIGATION. The obligations of each
Guarantor hereunder are independent of the obligations of any other guarantor or
any Borrower, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
guarantor or any Borrower and whether or not any other Guarantor or any Borrower
be joined in any such action or actions. Each Guarantor waives, to the fullest
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by any Borrower or
other circumstance which operates to toll any statute of limitations as to such
Borrower shall operate to toll the statute of limitations as to each Guarantor.
SECTION 9.05. AUTHORIZATION. Each Guarantor authorizes the Creditors
without notice or demand (except as shall be required by applicable law and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, increase,
accelerate or alter, any of the Guaranteed Obligations (including any
increase or decrease in the rate of interest thereon), any security
therefor, or any liability incurred directly or indirectly in respect
thereof, and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order
any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset there
against;
(c) exercise or refrain from exercising any rights
against any Borrower or others or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers,
guarantors, any Borrower or other obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of
those hereunder) incurred directly or indirectly in respect thereof
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or hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of any Borrower
to its creditors other than the Creditors;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of any Borrower to the
Creditors regardless of what liability or liabilities of such
Borrower remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any of the instruments
or agreements referred to herein, or otherwise amend, modify or
supplement this Agreement or any of such other instruments or
agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or
equitable discharge of such Guarantor from its liabilities under this
Section 9.
SECTION 9.06. RELIANCE. It is not necessary for the Creditors to
inquire into the capacity or powers of any Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
SECTION 9.07. SUBORDINATION. Any of the indebtedness of any Borrower
now or hereafter owing to a Guarantor is hereby subordinated to the Guaranteed
Obligations of such Borrower owing to the Creditors; and if the Administrative
Agent so requests at a time when an Event of Default exists, all such
indebtedness of any Borrower to a Guarantor shall be collected, enforced and
received by such Borrower for the benefit of the Creditors and be paid over to
the Administrative Agent on behalf of the Creditors on account of the Guaranteed
Obligations of such Borrower to the Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Guarantor of any note
or negotiable instrument evidencing any of the indebtedness of any Borrower to
such Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without limiting
the generality of the foregoing, each Guarantor hereby agrees with the Creditors
that it will not exercise any right of subrogation or contribution which it may
at any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) against any Borrower or
any other Guarantor until all Guaranteed Obligations have been irrevocably paid
in full in cash. The Guaranteed Obligations shall not be deemed to be paid in
full unless the Creditors shall have received all amounts set forth in the
definition of "Guaranteed Obligations", including, in the event of a bankruptcy
proceeding, all interest, fees and expenses accruing and arising after the
filing of the bankruptcy petition.
SECTION 9.08. WAIVER. (a) Each Guarantor waives any right (except as
shall be required by applicable law and cannot be waived) to require the
Creditors to (i) proceed against any Borrower or any other party, (ii) proceed
against or exhaust any security held from any Borrower or any other party or
(iii) pursue any other remedy in the Administrative Agent's or any other
Creditors' power whatsoever. Each Guarantor waives any defense based on or
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arising out of any defense of any Borrower or any other party, other than
payment in full of the Guaranteed Obligations, based on or arising out of the
disability of such Borrower, any other guarantor or any other party, or the
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of such Borrower other
than payment in full of the Guaranteed Obligations. To the greatest extent
permitted by law, the Creditors may, at their election, foreclose on any
security held by the Administrative Agent or any other Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Administrative Agent and any
other Creditors may have against any Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Guarantor waives any defense arising out of any such election by the
Creditors, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of such Guarantor
against any Borrower or any other Guarantor or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices (except as otherwise expressly provided for herein),
including without limitation notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Guaranteed Obligations.
Each Guarantor assumes all responsibility for being and keeping itself informed
of each Borrower's financial condition and assets, and of all circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the
nature, scope and extent of the risks which each Guarantor assumes and incurs
hereunder, and agrees that the Creditors shall have no duty to advise any
Guarantor of information known to them regarding such circumstances or risks.
SECTION 9.09. NATURE OF LIABILITY. It is the desire and intent of
the Guarantors and the Creditors that this Guaranty shall be enforced against
each Guarantor to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. If,
however, and to the extent that, the obligations of any Guarantor under this
Guaranty shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers), then the amount of the
Guaranteed Obligations of such Guarantor shall be deemed to be reduced and such
Guarantor shall pay the maximum amount of the Guaranteed Obligations which would
be permissible under applicable law.
SECTION 9.10. JUDGMENTS BINDING. If claim is ever made upon any
Creditor or any subsequent holder of a Note of any Borrower for repayment or
recovery of any amount or amounts received in payment or on account of any of
the Guaranteed Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property,
or (b) any settlement or compromise of any such claim effected by such payee
with any such claimant, then and in such event each Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon
each Guarantor, notwithstanding any revocation hereof or the cancellation of any
Note or other instrument evidencing any liability of such Borrower, and each
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
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amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. HOLIDAYS. Whenever any payment or action to be made or
taken hereunder or under any other Loan Document shall be stated to be due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
SECTION 10.02. RECORDS. The unpaid principal amount of the Loans
owing to each Lender, the unpaid interest accrued thereon, the interest rate or
rates applicable to such unpaid principal amount, the duration of such
applicability, each Lender's Revolving Credit Committed Amount shall at all
times be ascertained from the records of the Administrative Agent, which shall
be conclusive absent manifest error.
SECTION 10.03. AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Loan Document may be amended, modified or supplemented except in
accordance with the provisions of this Section. The Required Lenders and the
Company (acting on behalf of the Borrowers) may from time to time amend, modify
or supplement the provisions of this Agreement or any other Loan Document for
the purpose of amending, adding to, or waiving any provisions or changing in any
manner the rights and duties of any Borrower, any Agent, the LC Issuer or any
Lender. Any such amendment, modification or supplement made by the Company
(acting on behalf of the Borrowers) and the Required Lenders, in accordance with
the provisions of this Section shall be binding upon each Borrower, each Lender,
the LC Issuer and each Agent. The Agents shall enter into such amendments,
modifications, supplements or waivers from time to time as directed by the
Required Lenders, and only as so directed, PROVIDED, that no such amendment,
modification, waiver or supplement may be made which will:
(a) Increase the Revolving Credit Committed Amount of any
Lender over the amount thereof then in effect, or extend the
Revolving Credit Maturity Date or the Competitive Bid Loan Expiration
Date without the written consent of each Lender affected thereby, or
increase the Total Revolving Commitment Amount to exceed
$300,000,000;
(b) Reduce the principal amount of or extend the time for
any payment of any Loan, or reduce the amount of or rate of interest
or extend the time for payment of interest borne by any Loan or
extend the time for payment of or reduce the amount of any Facility
Fee or reduce or postpone the date for payment of any other fees,
expenses, indemnities or amounts payable under any Loan Document,
without the written consent of each Lender affected thereby;
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(c) Change the definition of "Required Lenders" or amend
this Section 10.03, Section 10.13 hereof or any provision of this
Agreement that states a requirement for the consent of all the
Lenders, without the written consent of all the Lenders;
(d) Release any of the Borrowers or Guarantors
(other than Parent or Foreign Holdings) without the written
consent of all the Lenders;
(e) Amend or waive any of the provisions of Article VIII
hereof, or impose additional duties upon any Agent or otherwise
adversely affect the rights, interests or obligations of any Agent,
without the written consent of such Agent; or
(f) Amend or waive any of the provisions of Section 2.06
hereof or the Letters of Credit Related Documents, or impose
additional duties upon the LC Issuer or otherwise adversely affect
the rights, interests or obligations of the LC Issuer, without the
written consent of the LC Issuer,
and PROVIDED FURTHER, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
SECTION 10.04. NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of any Agent or any Lender in exercising any
right, power or privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Agents and the
Lenders under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which any Agent or any Lender would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
SECTION 10.05. NOTICES. (a) Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "NOTICES") under this Agreement or any
other Loan Document shall be in writing (including telexed and telecopied
communication) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or telecopier (with
confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party at the address stated on the signature pages hereof or in accordance with
the last unrevoked written direction from such party to the other parties
hereto, in all cases with postage or other charges prepaid. Any such properly
given notice shall be effective on the earliest to occur of receipt, telephone
confirmation of receipt of telex or telecopy communication, one Business Day
after delivery to a nationally-recognized overnight courier, or three Business
Days after deposit in the mail.
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(b) Any Lender giving any notice to the Company or any other Borrower
shall simultaneously send a copy thereof to each Agent, and each Agent shall
promptly notify the other Lenders of the receipt by it of any such notice.
(c) Each Agent and each Lender may rely on any notice (whether or not
such notice is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the Company (including acting
on behalf of any Borrower) and any other Borrower, and neither Agent nor any
Lender shall have any duty to verify the identity or authority of any Person
giving such notice.
SECTION 10.06. EXPENSES; TAXES; INDEMNITY. (a) Each Borrower agrees,
jointly and severally, to pay or cause to be paid and to save each Agent, the LC
Issuer and, in the case of clause (iii) below, each of the Lenders harmless
against liability for the payment of all reasonable out-of-pocket costs and
expenses (including but not limited to reasonable fees and expenses of one
counsel to the Agents and auditors, consulting engineers, appraisers, and all
other professional, accounting, evaluation and consulting costs approved by the
Company and, with respect to costs incurred by the Agents, or any Lender or the
LC Issuer pursuant to clause (iii) below, reasonable fees and expenses of
counsel (including allocated costs of in-house counsel to the extent that
outside counsel has not been retained by such Lender)) incurred by the Agents
or, in the case of clause (iii) below any Lender or the LC Issuer from time to
time arising from or relating to (i) the negotiation, preparation, execution,
delivery, administration and performance of this Agreement and the other Loan
Documents, (ii) any requested amendments, modifications, supplements, waivers or
consents (whether or not ultimately entered into or granted) to this Agreement
or any other Loan Document, and (iii) following the occurrence of an Event of
Default, the enforcement or preservation of rights under this Agreement or any
other Loan Document (including but not limited to any such costs or expenses
arising from or relating to (A) collection or enforcement of an outstanding Loan
or any other amount owing hereunder or thereunder by any Agent, the LC Issuer or
any Lender, and (B) any litigation, proceeding, dispute, work-out, restructuring
or rescheduling related in any way to this Agreement or the other Loan
Documents).
(b) Each Borrower hereby agrees, jointly and severally, to pay all
stamp, document, transfer, recording, filing, registration, search, sales and
excise fees and taxes and all similar impositions now or hereafter determined by
any Agent, the LC Issuer or any Lender to be payable in connection with this
Agreement or any other Loan Documents or any other documents, instruments or
transactions pursuant to or in connection herewith or therewith, and each
Borrower hereby agrees, jointly and severally, to save each Agent, the LC Issuer
and each Lender harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) Each Borrower hereby agrees, jointly and severally, to reimburse
and indemnify each of the Indemnified Parties from and against any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
(including, without duplication, allocated costs of in-house counsel) for such
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Indemnified Party in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, this Agreement or any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan or Letter of Credit (and without in any
way limiting the generality of the foregoing, including any violation or breach
of any Requirement of Law or any other Law by the Company or any Subsidiary); or
any exercise by any Agent or any Lender of any of its rights or remedies under
this Agreement or any other Loan Document); but excluding any such losses,
liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements resulting primarily from the gross
negligence or willful misconduct of such Indemnified Party. If and to the extent
that the foregoing obligations of any Borrower under this subsection (c), or any
other indemnification obligation of any Borrower hereunder or under any other
Loan Document, are unenforceable for any reason, each Borrower hereby agrees,
jointly and severally, to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under applicable Law.
SECTION 10.07. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
SECTION 10.08. PRIOR UNDERSTANDINGS. This Agreement and the other
Loan Documents supersede all prior and contemporaneous understandings and
agreements other than with regard to any upfront fees, whether written or oral,
among the parties hereto relating to the transactions provided for herein and
therein.
SECTION 10.09. DURATION; SURVIVAL. All representations and warranties
of each Borrower contained herein or in any other Loan Document or made in
connection herewith shall survive the making of, and shall not be waived by the
execution and delivery, of this Agreement or any other Loan Document, any
investigation by or knowledge of any Agent or any Lender, the making of any
Loan, or any other event or condition whatever. All covenants and agreements of
the Credit Parties contained herein or in any other Loan Document shall continue
in full force and effect from and after the date hereof so long as any Borrower
may borrow hereunder or request the Issuances of Letters of Credit and until
payment in full of all Obligations other than indemnity obligations not yet due
and payable. Without limitation, all obligations of each Borrower hereunder or
under any other Loan Document to make payments to or indemnify each Agent or any
Lender shall survive the payment in full of all other obligations, termination
of such Borrower's right to borrow hereunder, and all other events and
conditions whatever. In addition, all obligations of each Lender to make
payments to or indemnify the Agents shall survive the payment in full by the
Borrowers of all Obligations, termination of each Borrower's right to borrow
hereunder, and all other events or conditions whatever.
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SECTION 10.10. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
SECTION 10.11. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, no Borrower shall be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by such Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
SECTION 10.12. SET-OFF. Each Credit Party hereby agrees that, to the
fullest extent permitted by law, if any Obligation of any Borrower shall be due
and payable (by acceleration or otherwise), each Lender and the LC Issuer shall
have the right, without notice to the Company, such Credit Party or any other
Person, to set-off against and to appropriate and apply to the Obligation any
indebtedness, liability or obligation of any nature owing to such Credit Party
by such Lender or the LC Issuer, including but not limited to all deposits
(whether time or demand, general or special, provisionally credited or finally
credited, whether or not evidenced by a certificate of deposit and in whatever
currency denominated) now or hereafter maintained by such Credit Party with such
Lender or the LC Issuer, as the case may be. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist whether
or not such Lender or the LC Issuer or any other Person shall have given notice
or made any demand to the Company, such other Credit Party or any other Person,
whether such indebtedness, obligation or liability owed to such Credit Party is
contingent, absolute, matured or unmatured (it being agreed that such Lender or
the LC Issuer may deem such indebtedness, obligation or liability to be then due
and payable at the time of such setoff), and regardless of the existence or
adequacy of any collateral, guaranty or any other security, right or remedy
available to any Lender or the LC Issuer or any other Person. Each Credit Party
hereby agrees that, to the fullest extent permitted by law, any Participant and
any branch, subsidiary or affiliate of any Lender or any Participant shall have
the same rights of set-off as a Lender as provided in this Section (regardless
of whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of any Borrower). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
SECTION 10.13. SHARING OF COLLECTIONS. The Lenders hereby agree among
themselves that if any Lender shall receive (by voluntary payment, realization
upon security, set-off or from any other source) any amount on account of the
Loans, interest thereon, or any other Obligation contemplated by this Agreement
or the other Loan Documents to be made by any Borrower pro rata to all Lenders
in greater proportion than any such amount received by any other Lender, then
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the Lender receiving such proportionately greater payment shall notify each
other Lender and the Agents of such receipt, and equitable adjustment will be
made in the manner stated in this Section so that, in effect, all such excess
amounts will be shared ratably among all of the Lenders. The Lender receiving
such excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Obligations owed to such other Lenders
in such amount as shall result in a ratable sharing by all Lenders of such
excess amount (and to such extent the receiving Lender shall be a Participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
Each Borrower hereby consents to and confirms the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
SECTION 10.14. SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of each Borrower, the LC Issuer, the Lenders, all future holders of
the Notes, each Agent and their respective successors and assigns, except that
no Borrower may assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all the Lenders and each Agent, and
any purported assignment without such consent shall be void.
(b) PARTICIPATIONS. Any Lender may, in accordance with applicable
Law, at any time sell participations to one or more commercial banks or other
Persons (each a "PARTICIPANT") in all or a portion of its rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of its Commitments and the Loans owing to it and
any Note held by it); PROVIDED, that
(i) any such Lender's obligations under this Agreement and
the other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan
Documents,
(iv) such Participant shall be bound by the provisions of
Sections 10.13 and 10.16 hereof, and the Lender selling such
participation shall obtain from such Participant a written
confirmation of its agreement to be so bound,
(v) no Participant (unless such Participant is an
affiliate of such Lender, or is itself a Lender) shall be entitled to
require such Lender to take or refrain from taking action under this
Agreement or under any other Loan Document, except that such Lender
may agree with such Participant that such Lender will not, without
such Participant's consent, take action of the type described in
subsections (a), (b), (c) or (d) of Section 10.03 hereof to the
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extent relating to such Participant's participation; notwithstanding
the foregoing, in no event shall any participation by any Lender have
the effect of releasing such Lenders from its obligations hereunder,
and
(vi) no Participant shall be an Affiliate of any Credit
Party.
Each Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.14, 2.16 and 10.06 with respect to its participation in the
Commitments and the Loans outstanding from time to time but only to the extent
such Participant sustains such losses; PROVIDED, that no such Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred to such Participant had no such transfer
occurred and nothing in this Section shall relieve such transferor Lender from
its obligations under Section 2.17 hereof.
(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it) to any Eligible
Assignee (each a "PURCHASING LENDER"); PROVIDED, that
(i) any such assignment to a Purchasing Lender which is
not a Lender shall be made only with the consent of the Company
(provided that such consent of the Company shall not be required
during the occurrence of and continuation of an Event of Default) and
each Agent which with respect to each Agent shall not be unreasonably
withheld,
(ii) if a Lender makes such an assignment of less than all
of its then remaining rights and obligations under this Agreement and
the other Loan Documents, such transferor Lender shall retain, after
such assignment, a minimum principal amount of $5,000,000 of the
Commitments and Loans then outstanding, and such assignment shall be
in a minimum aggregate principal amount of $5,000,000 of the
Commitments and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not
a varying, percentage of each Commitment of the transferor Lender and
of all of the transferor Lender's rights and obligations under this
Agreement and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a
Transfer Supplement in substantially the form of Exhibit G to this
Agreement, duly completed (a "TRANSFER SUPPLEMENT").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Administrative Agent a duly completed
Transfer Supplement (including the consents required by clause (i) of the
preceding sentence) with respect to such assignment, together with any Note or
Notes subject to such assignment (the "TRANSFEROR LENDER NOTES") and (except in
the case of a transfer required by any Borrower under Section 10.17 hereof) a
processing and recording fee of $3,500; and, upon receipt thereof, the
Administrative Agent shall accept such Transfer Supplement. Notwithstanding the
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foregoing, no such processing and recording fee shall be payable in the case of
a replacement of a Lender pursuant to Section 2.18 or 10.17. Upon receipt of the
Purchase Price Receipt Notice pursuant to such Transfer Supplement, the
Administrative Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to
the extent provided in such Transfer Supplement, shall have the
rights and obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released
from its obligations under this Agreement to the extent so
transferred (and, in the case of an Transfer Supplement covering all
or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease
to be a party to this Agreement) from and after the Transfer
Effective Date.
To the extent requested by the Purchasing Lender, on or prior to the Transfer
Effective Date specified in an Transfer Supplement, the Borrowers, at their
expense, shall execute and deliver to the Administrative Agent (for delivery to
the Purchasing Lender) new Notes evidencing such Purchasing Lender's assigned
Commitments or Loans and (for delivery to the transferor Lender) replacement
Notes in the principal amount of the Loans or Commitments retained by the
transferor Lender (such Notes to be in exchange for, but not in payment of,
those Notes then held by such transferor Lender). Each such Note shall be dated
the date and be substantially in the form of the predecessor Note. The
Administrative Agent shall xxxx the predecessor Notes, if any, "exchanged" and
deliver them to the Company. Accrued interest and accrued fees shall be paid to
the Purchasing Lender at the same time or times provided in the predecessor
Notes and this Agreement.
A transfer by a Lender of its rights under this Agreement from one of
such Lender's branches to another of its branches shall not be considered to be
an assignment for the purposes of this Section 10.14 and shall be permitted
without the consent of any Borrower or of the Agents, PROVIDED that to the
extent such transfer would, at the time of such transfer, result in increased
costs under Section 2.14 or 2.16 from those being charged by the transferring
branch, the Borrowers shall not be obligated to pay such increased costs
(although the Borrowers shall be, jointly and severally, obligated to pay any
other increased costs of the type described above resulting from changes after
the date of the respective transfer). The foregoing proviso shall also apply to
such transfer from a Lender to another Lender or any affiliate thereof or of an
affiliate of such transferor Lender or to a Person which will become a Lender.
(d) REGISTER. The Administrative Agent shall maintain at its office a
copy of each Transfer Supplement delivered to it and a register (the "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 from time to time.
The entries in the Register shall be conclusive absent manifest error and the
Borrowers, the Agents and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
-105-
Agreement. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) FINANCIAL AND OTHER INFORMATION. The Company authorizes each
Agent and each Lender to disclose to any Participant or Purchasing Lender (each,
a "TRANSFEREE") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Company and its
Subsidiaries and Affiliates which has been or may be delivered to such Person by
or on behalf of the Company in connection with this Agreement or any other Loan
Document or such Person's credit evaluation of the Company and its Subsidiaries
and Affiliates; subject, however, to the provisions of Section 10.16 hereof.
(f) Notwithstanding anything to the contrary contained herein, any
Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Company, the option
to provide to any Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to such Borrower pursuant to this
Agreement; PROVIDED that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof and (iii) no
SPC or Granting Lender shall be entitled to receive any greater amount pursuant
to Section 2.14 or 2.16 than the Granting Lender would have been entitled to
receive had the Granting Lender not otherwise granted such SPC the option to
provide any Loan to any Borrower. The making of any Revolving Credit Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment of the Granting
Lender (and, if such Loan is a Competitive Bid Loan, shall be deemed to utilize
the Total Revolving Credit Commitment of all the Lenders) to the same extent,
and as if, such Loan were made by the Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any obligation of any kind with respect
to this Agreement under any circumstances whatsoever, including without
limitation whether or not the related Granting Lender makes such payment. The
foregoing shall not release the Granting Lender from any obligation hereunder;
and the Granting Lender's liability shall be determined as if no grant to an SPC
had been made by it. Each party hereto hereby acknowledges and agrees that no
SPC shall have any voting rights hereunder and that the voting rights
attributable to any extensions of credit made by an SPC shall be exercised only
by the relevant Granting Lender. Each Granting Lender shall serve as the
administrative agent and attorney-in-fact for its SPC and shall on behalf of its
SPC: (i) receive any and all payments made for the benefit of such SPC and (ii)
give and receive all communications and notices and take all actions hereunder
to the extent, if any, such SPC shall have any rights hereunder. To the extent
an SPC shall have the right to receive or give any such notice or take any such
action in writing, it shall be signed by its Granting Lender as administrative
agent and attorney-in-fact for such SPC and need not be signed by such SPC on
its own behalf. The Borrowers, the Guarantors, the Administrative Agent and the
Lenders may rely thereon without any requirement that the SPC sign or
acknowledge the same. In addition, notwithstanding anything to the contrary
contained in this Section 10.14, any SPC may (i) with notice to, but without the
prior written consent of, the Company or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
-106-
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider or a surety, guarantee or credit or liquidity enhancement to such
SPC. In the event that an SPC extends a Loan to any Borrower as contemplated
above, such Borrower shall repay such Loan to the SPC through the Administrative
Agent in full on the maturity date thereof, notwithstanding any provision for
repayments being affected on a basis of re-borrowings. The foregoing shall not
release the Granting Lender from any obligation hereunder, the Granting Lender's
liability to be determined as if no grant to an SPC had been made by it.
Each party hereto agrees that until the 369th day following the
maturity of the last maturing commercial paper note issued or to be issued by an
SPC, it will not institute, or join with others in instituting, against the SPC
any involuntary bankruptcy or insolvency proceeding under any applicable
bankruptcy reorganization, insolvency or similar law, as now or hereafter in
effect.
In the event that an SPC makes a Loan hereunder, the applicable
Borrower shall repay the full amount of such Loan to the SPC through the
Administrative Agent on the maturity date thereof, notwithstanding any provision
contained in this Agreement with respect to netting of amounts payable by such
Borrower against amounts being borrowed by such Borrower on the same day, and
each Borrower shall be jointly and severally obligated to repay such Loan.
SECTION 10.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. (a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. EACH BORROWER AND GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY
PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION SITTING IN XXX XXXX XXX XXXXXX XX XXX XXXX,
XXX XXXX, SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE
FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY
RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO
THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH
COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT,
WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
-107-
THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH BORROWER OR
GUARANTOR;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE COMPANY AT
THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND
CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT
THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
SECTION 10.16. CONFIDENTIALITY. Except as may be required by Law,
each Lender and each Agent covenants and agrees to use its best efforts not to
permit any data or information relating to the Company or any of its
Subsidiaries or the business of the Company or any of its Subsidiaries (other
than any data or information which is otherwise publicly available or which is
received by any such party in a capacity in which such party is not bound by any
restriction of a nature similar to that imposed by this Section 10.16), which
data or information such Lender or any Agent possesses due to such party's
relation to the transactions contemplated by the Loan Documents, to be out of
such party's possession or the contents thereof to be divulged to any other
Person; PROVIDED, HOWEVER, that such data or information may be disclosed to the
lawyers or accountants of such Lender or any Agent and to any Person empowered
by Law to examine the records of any such Person and to any potential
participant in, or assignee or transferee of, its rights under any Loan
Documents which potential participant, assignee or transferee shall have, in
each case, agreed with such party to comply with the terms of this Section
10.16.
SECTION 10.17. REPLACEMENT OF LENDERS. If (a) any Borrower is
required to make a payment to a particular Lender pursuant to Sections 2.14 or
2.16 hereof (or pursuant to a comparable provision in any agreement with respect
to such Borrower's Indebtedness for borrowed money between such Borrower, such
Lender and at least five other lenders) or (b) any Borrower is precluded from
requesting Loans of any type from a particular Lender pursuant to Section
2.08(e) hereof, the Company may, upon not less than 15 Business Days' notice to
the Administrative Agent, either (x) immediately terminate the Commitments of
such Lender, prepay (subject to Section 2.14(b) hereof) such Lender's Loans,
together with interest accrued thereon and all other amounts payable with
respect thereto, and pay all other amounts then due and owing to such Lender (in
which event the Total Revolving Credit Commitment shall be reduced by the amount
of such Lender's Revolving Credit Committed Amount) or (y) cause a Replacement
Lender reasonably satisfactory to the Administrative Agent (which may be one of
the other Lenders) to purchase all of such Lender's interests in accordance with
the provisions of Section 10.14(c) hereof.
SECTION 10.18. JUDGMENT CURRENCY. (a) Each Borrower's and Guarantor's
obligation hereunder and under the other Loan Documents to make payments in
Dollars or any other currency (the "OBLIGATION CURRENCY") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
-108-
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the LC Issuer or the respective Lender of
the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the LC Issuer or such Lender under this Agreement or the
other Loan Documents. If for the purpose of obtaining or enforcing judgment
against any Borrower or Guarantor in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "JUDGMENT
CURRENCY") an amount due in the Obligation Currency, the conversion shall be
made, at the rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by a
known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the day immediately preceding the day on which
the judgment is given (such Business Day being hereinafter referred to as the
"JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, each Borrower and Guarantor covenants and agrees, jointly and
severally, to pay, or cause to be paid, such additional amounts, if any (but in
any event not a lesser amount) as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the rate of exchange prevailing
on the date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate or exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this Section
10.18, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
SECTION 10.19. EFFECTIVENESS. The Previous Credit Agreement became
effective on December 1, 1999 (the "ORIGINAL EFFECTIVE DATE"). This Agreement
shall become effective on May 25, 2001 (the "EFFECTIVE DATE") PROVIDED that the
following conditions precedent shall occur: (i) each Borrower, each Guarantor
and the Required Lenders shall have signed a copy of this Agreement and shall
have delivered executed counterparts of this Agreement to the Administrative
Agent at its Notice Office or, in the case of any Lender, shall have given to
the Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and sent to such Administrative Agent, (ii) each Borrower shall
have signed and delivered executed Revolving Credit Notes, Competitive Bid Loan
Notes and a Swingline Advance Note conforming to the requirements hereof, duly
executed on behalf of each Borrower for each Lender requesting the same, (iii)
each Borrowing Subsidiary shall have signed and delivered a copy of the Pledge
Agreement and shall have delivered executed counterparts thereof to the
Administrative Agent at its Notice Office, (iv) the Company and the Parent shall
have signed and delivered a copy of a subordination agreement pursuant to
6.03(v) and shall have delivered executed counterparts thereof to the
Administrative Agent at its Notice Office, (v) the Administrative Agent shall
have received copies (executed or certified, as may be appropriate) of all legal
documents or proceeding taken in connection with the execution and delivery of
this Agreement to the extent that Administrative Agent or its counsel may
reasonably request, (vi) in a form satisfactory to the Administrative Agent, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Effective Date,
covering matters incident to the transactions contemplated herein as the
-109-
Administrative Agent may reasonably request and such other foreign counsel
opinions as the Administrative Agent may reasonably request, (vii) all fees and
expenses (including, without limitation, all legal fees and expenses) due to the
Agent and the Lenders and special legal counsel to the Agent shall have been
paid and (viii) each of the merger certificates filed in the State of New York
and Delaware among Xxxxxx Xxxxxxx Corporation and Xxxxxx Xxxxxxx LLC shall have
been declared effective.
SECTION 10.20. ENTIRE AGREEMENT - CONSTRUCTION. This Agreement and
the other Loan Documents, taken together, constitute and contain the entire
agreement among the Borrowers, the Lenders and Administrative Agent and
supercede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof. To the extent of any inconsistency between
this Agreement and any other Loan Document, the terms and conditions contained
in this Agreement shall govern.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-110-
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: XXXXXX XXXXXXX LLC, as a Borrower
By: Foreign Holdings Ltd.,
its sole member
By_______________________________ By______________________________
Title: Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-1
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX USA CORPORATION,
as a Borrower
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-2
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX ENERGY
INTERNATIONAL, INC.,
as a Borrower
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-3
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX ENERGY
CORPORATION, as a Borrower
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-4
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX US HOLDINGS, INC.,
as a Guarantor
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-5
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX INTERNATIONAL
HOLDINGS, INC., as a Guarantor
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-6
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
FOREIGN HOLDINGS LTD.,
as a Guarantor,
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-7
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
XXXXXX XXXXXXX LTD.,
as a Guarantor
By _____________________________
Title:
Address for Notices:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Attn: Vice President and
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
S-8
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
BANK OF AMERICA, N.A.,
individually and as
Administrative Agent, LC
Issuer and Swingline Lender
By ____________________________
Title:
Initial Revolving Credit
Committed Amount: $30,000,000
Commitment Percentage: 11.111%
Address for Notices:
0000 Xxxxxxx Xxxxxxxxx
XX0-000-00-00
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
000 Xxxxx Xxxxxx Xxxxxx,
11th Floor
CA9-706-11-07
Xxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-9
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
FIRST UNION NATIONAL BANK,
individually and as
Syndication Agent
By ___________________________
Title:
Initial Revolving Credit
Committed Amount: $30,000,000
Commitment Percentage: 11.111%
Address for Notices:
000 Xxxxx Xxxx, XX 0000
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx XX
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
000 Xxxxx Xxxxxxx Xxxxxx
0xx Xxxxx, XX 0760
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Longhine
Senior Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-10
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
ABN AMRO BANK N.V., individually
and as Documentation Agent
By _____________________________
Title:
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $30,000,000
Commitment Percentage: 11.111%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Credit Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
000 Xxxxx XxXxxxx Xxxxxx,
Xxx. 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-11
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
TORONTO DOMINION (TEXAS), INC.
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $30,000,000
Commitment Percentage: 11.111%
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx
Energy Group
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
The Toronto Dominion Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-12
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By _____________________________
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $30,000,000
Commitment Percentage: 11.111%
Address for Notices:
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, X.X. XX0X0XX
Attn: Xxxxxxx Xxxxxxxx
Director
Telephone: (44) (000) 000-0000
Telecopier: (44) (171) 390-1108
With a copy to:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-13
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
THE BANK OF NOVA SCOTIA
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $7,500,000
Commitment Percentage: 2.778%
Address for Notices:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Schwartzbarg
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-14
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 5.556%
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-15
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
CITIBANK, N.A.
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 5.556%
Address for Notices:
000 Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
0 Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Loan Administrator
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-16
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
DEUTSCHE BANK AG, NEW YORK BRANCH
a/o CAYMAN ISLANDS BRANCH
By _____________________________
Title:
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 5.556%
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-17
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
BNP PARIBAS (successor by merger
to Paribas)
By _____________________________
Title:
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 5.556%
Address for Notices:
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-18
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
PNC BANK, NATIONAL ASSOCIATION
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $15,000,000
Commitment Percentage: 5.556%
Address for Notices:
0 Xxxxx Xxxxxx Xxxx.
Xxxxx 00-0
Xxxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
0 Xxxxx Xxxxxx Xxxx.
Xxxxx 00-0
Xxxx Xxxxxxxxx, XX 00000
Attn: Xxxx X'Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-19
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
SOCIETE GENERALE, NEW YORK BRANCH
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $26,250,000
Commitment Percentage: 9.722%
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Corporate Assistant
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-20
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
STANDARD CHARTERED BANK
By _____________________________
Title:
Initial Revolving Credit
Committed Amount: $11,250,000
Commitment Percentage: 4.167%
Address for Notices:
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
S-21
(Xxxxxx Xxxxxxx Corporation
Second Amended and Restated Revolving Credit Agreement)
EXHIBIT A
TO
CREDIT AGREEMENT
REVOLVING CREDIT NOTE
$________________ New York, New York
________________, 20____
FOR VALUED RECEIVED, XXXXXX XXXXXXX LLC, a Delaware limited liability
company, XXXXXX XXXXXXX USA CORPORATION, a Delaware corporation, XXXXXX XXXXXXX
ENERGY INTERNATIONAL, INC., a Delaware corporation, and XXXXXX XXXXXXX ENERGY
CORPORATION, a Delaware corporation (individually and collectively referred to
herein as "BORROWER"), jointly and severally, promise to pay to the order of
[NAME OF LENDER] (the "LENDER") on or before the Revolving Credit Maturity Date,
and at such earlier dates as may be required by the Agreement (as defined
below), the lesser of (i) the principal sum of ________ ($_______) or (ii) the
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to Borrower from time to time pursuant to the Agreement. Borrower
further, jointly and severally, promises to pay to the order of the Lender
interest on the unpaid principal amount hereof from time to time outstanding at
the rate or rates per annum determined pursuant to the Agreement, payable on the
dates set forth in the Agreement.
This Note is one of the "REVOLVING CREDIT NOTES" as referred to in,
and is entitled to the benefits of, the Second Amended and Restated Revolving
Credit Agreement, dated as of May 25, 2001, by and among Borrower, the
Guarantors party thereto from time to time, the Lenders party thereto from time
to time and Bank of America National Trust and Savings Association, as
Administrative Agent (as the same may be amended, modified or supplemented from
time to time, the "AGREEMENT"), which among other things provides for the
acceleration of the maturity hereof upon the occurrence of certain events and
for prepayments in certain circumstances and upon certain terms and conditions.
Terms defined in the Agreement have the same meanings herein.
Except as otherwise set forth in the Agreement, Borrower hereby
expressly waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Agreement, and an action for amounts due
hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in accordance
with the laws of the State of New York, without regard to principles of choice
of law.
XXXXXX XXXXXXX LLC
BY: Foreign Holdings Ltd.,
its sole member
By
Title:______________________
XXXXXX XXXXXXX USA CORPORATION
By
Title:______________________
XXXXXX XXXXXXX ENERGY
INTERNATIONAL, INC.
By
Title:______________________
XXXXXX XXXXXXX ENERGY CORPORATION
By
Title:______________________
-2-
EXHIBIT B
TO
CREDIT AGREEMENT
[Form of Competitive Bid Loan Quote Request]
----------------, ----
To: Bank of America National Trust and Savings Association, as
Administrative Agent
From: Xxxxxx Xxxxxxx LLC (acting on behalf of the applicable Borrower)
Re: Competitive Bid Loan Quote Request
Pursuant to Section 2.03(b) of the Second Amended and Restated
Revolving Credit Agreement dated as of May 25, 2001, by and among XXXXXX XXXXXXX
LLC, the borrowing subsidiaries party thereto, the guarantors party thereto, the
lenders party thereto and Bank of America National Trust and Savings
Association, as Administrative Agent (as the same may from time to time be
amended or modified, the "AGREEMENT"), we hereby give notice that we request
Competitive Bid Loan Quotes (on behalf of [INSERT NAME OF APPLICABLE BORROWER])
for the following proposed Competitive Bid Borrowing(s):
------------------- ------------- ------------------ ---------- -------------
Borrowing Principal Interest
Date Borrower Amount(1) Type(2) Period(3) Currency
------------------- ------------- ------------------ ---------- -------------
------------------- ------------- ------------------ ---------- -------------
Terms used herein have the meanings assigned to them in the
Agreement.
XXXXXX XXXXXXX LLC
BY: Foreign Holdings Ltd.,
its sole member
By
Title:_____________________
--------
1 Each amount must be a Dollar Equivalent of $5,000,000 or a higher integral
multiple of $1,000,000 (to the extent practical in the case of Eurocurrency
Loans).
2 Insert either "LIBOR-based Margin" (in the case of LIBOR-based Loans), "CD
Rate Margin" (in the case of CD Rate Loans), "Base Rate Margin" (in the
case of Base Rate Loans) or "Absolute Rate" (in the case of Absolute Rate
Loans).
3 Each Interest Period must be not less than seven days or more than 180
days.
- 2 -
EXHIBIT C
TO
CREDIT AGREEMENT
[Form of Competitive Bid Loan Quote]
Bank of America National Trust and
Savings Association, as Administrative Agent
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
ATTENTION: ________________
RE: COMPETITIVE BID LOAN QUOTE TO
XXXXXX XXXXXXX LLC (THE "COMPANY")
----------------------------------
This Competitive Bid Loan Quote is given in accordance with Section
2.03(d) of the Second Amended and Restated Revolving Credit Agreement dated as
of May 25, 2001, by and among Xxxxxx Xxxxxxx LLC, a Delaware limited liability
company (the "COMPANY"), the borrowing subsidiaries party thereto, the
Guarantors party thereto, the lenders party thereto and Bank of America National
Trust and Savings Association, as Administrative Agent (as the same may from
time to time be amended or modified, the "AGREEMENT"). Terms defined in the
Agreement are used herein as defined therein.
In response to the Company's invitation dated ___________, ___, we
hereby make the following Competitive Bid Loan Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Competitive Bid Loan(s) in the
following principal amounts, for the following Interest Periods
and at the following rates:
------------ ----------- ------------ ----------- ------------- ----------- ------------
Borrowing Principal Interest
Date(4) Borrower Amount(5) Type(6) Period(7) Rate(8) Currency
------------ ----------- ------------ ----------- ------------- ----------- ------------
------------ ----------- ------------ ----------- ------------- ----------- ------------
------------ ----------- ------------ ----------- ------------- ----------- ------------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to Section 2.03(g) of
the Agreement).
Very truly yours,
[LENDER]
By
Authorized Officer
Dated: ________________
----------
4 As specified in the related Competitive Bid Loan Quote Request.
5 The principal amount bid for each Interest Period may not exceed the
principal amount of Competitive Bid Loans requested. Bids must be made for
a Dollar Equivalent of at least $5,000,000 or a higher integral multiple of
$1,000,000.
6 Indicate "LIBOR-based Margin" (in the case of LIBOR-based Loans), "CD Rate
Margin" (in the case of CD Rate Loans), "Base Rate Margin" (in the case of
Base Rate Loans) or "Absolute Rate" (in the case of Absolute Rate Loans).
7 Must be not less than seven days or more than 180 days, as specified in the
related Competitive Bid Loan Quote Request
8 For a LIBOR-based Loan, specify margin over or under the LIBOR-Rate
determined for the applicable Interest Period. For a CD Rate Loan, specify
margin over or under the CD Rate determined for the applicable Interest
Period. For a Base Rate Loan, specify margin over or under the Base Rate
determined for the applicable Interest Period. In each case, specify
percentage (rounded to the nearest 1/10,000 of 1%) and specify
whether"plus" or "MINUS". For an Absolute Rate Loan, specify rate of
interest per annum (rounded to the nearest 1/10,000 of 1%).
- 2 -
EXHIBIT D
TO
CREDIT AGREEMENT
[Form of Competitive Bid Note]
PROMISSORY NOTE
$______________ ____________, 20__
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXXX LLC, a Delaware
limited liability company, XXXXXX XXXXXXX USA CORPORATION, a Delaware
corporation, XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC., a Delaware corporation,
and XXXXXX XXXXXXX ENERGY CORPORATION, a Delaware corporation (individually and
collectively referred to herein as "BORROWER"), jointly and severally, promise
to pay to the order of __________________ (the "LENDER") on the Competitive Bid
Loan Maturity Date of each Competitive Bid Loan made by the Lender to Borrower
pursuant to the Agreement described below, the lesser of (i) the principal sum
of ________________________________ Dollars ($___________) or (ii) the unpaid
principal amount of all such Competitive Bid Loans made by the Lender maturing
on such Competitive Bid Loan Maturity Date. Borrower further, jointly and
severally, promise to pay to the order of the Lender interest on the unpaid
principal amount of each such Competitive Bid Loan from time to time outstanding
at the rate or rates per annum determined pursuant to Section 2.03 of, or as
otherwise provided in, the Agreement, payable on the dates set forth in Sections
2.03 (k) and 2.15 of, or as otherwise provided in, the Agreement.
This Competitive Bid Note is one of the "COMPETITIVE BID NOTES"
referred to in, and is entitled to the benefits provided by, the Second Amended
and Restated Revolving Credit Agreement dated as of May 25, 2001, by and among
Borrower, the guarantors party thereto, the lenders party thereto and Bank of
America National Trust and Savings Association, as Administrative Agent for the
lenders (as the same may from time to time be amended or modified, the
"AGREEMENT"). Said Agreement, among other things, contains provisions for
acceleration of the maturity of Competitive Bid Loans evidenced hereby upon the
happening of certain stated events, upon the terms and conditions therein
specified. Terms defined in the Agreement shall have the same meanings herein.
Subject to the provisions of the Agreement, payments of both
principal and interest shall be made at the office of Bank of America National
Trust and Savings Association located at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxxxxx 00000, in lawful money of the United States of America in
immediately available funds.
Except as otherwise set forth in the Agreement, Borrower hereby
expressly waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Competitive Bid Note and the Agreement, and an action for
amounts due hereunder or thereunder shall immediately accrue.
This Competitive Bid Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
XXXXXX XXXXXXX LLC
BY: Foreign Holdings Ltd.,
its sole member
By
Title:_____________________________
XXXXXX XXXXXXX USA CORPORATION
By
Title:_____________________________
XXXXXX XXXXXXX ENERGY INTERNATIONAL,
INC.
By
Title:_____________________________
XXXXXX XXXXXXX ENERGY CORPORATION
By
Title:_____________________________
-2-
EXHIBIT E
TO
CREDIT AGREEMENT
SWINGLINE ADVANCE NOTE
$_____________ New York, New York,
_____________, 20__
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXXX LLC, a Delaware
limited liability company, XXXXXX XXXXXXX USA Corporation, a Delaware
corporation, XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC., a Delaware corporation,
and XXXXXX XXXXXXX ENERGY CORPORATION, a Delaware corporation (individually and
collectively referred to herein as "BORROWER"), jointly and severally promise to
pay to the order of [name of Lender] (the "LENDER") on or before the Revolving
Credit Maturity Date, and at such earlier dates as may be required by the
Agreement (as defined below), the lesser of (i) the principal sum of Ten Million
Dollars ($10,000,000) or (ii) the aggregate unpaid principal amount of all
Swingline Advances made by the Lender to Borrower from time to time pursuant to
the Agreement. Borrower, jointly and severally, further promises to pay to the
order of the Lender interest on the unpaid principal amount hereof from time to
time outstanding at the rate or rates per annum determined pursuant to the
Agreement, payable on the dates set forth in the Agreement.
This Note is one of the "SWINGLINE ADVANCE NOTES" as referred to in,
and is entitled to the benefits of, the Second Amended and Restated Revolving
Credit Agreement, dated as of May 25, 2001, by and among the Borrower, the
Guarantors party thereto from time to time, the Lenders party thereto from time
to time and Bank of America National Trust and Savings Association, as
Administrative Agent (as the same may be amended, modified or supplemented from
time to time, the "AGREEMENT"), which among other things provides for the
acceleration of the maturity hereof upon the occurrence of certain events and
for prepayments in certain circumstances and upon certain terms and conditions.
Terms defined in the Agreement have the same meanings herein.
Except as otherwise set forth in the Agreement, Borrower hereby
expressly waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Agreement, and an action for amounts due
hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in accordance
with the laws of the State of New York, without regard to principles of choice
of law.
XXXXXX XXXXXXX LLC
BY: Foreign Holdings Ltd.,
its sole member
By
Title:_______________________________
XXXXXX XXXXXXX USA CORPORATION
By
Title:_______________________________
XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC.
By
Title:_______________________________
XXXXXX XXXXXXX ENERGY CORPORATION
By
Title:_______________________________
-2-
EXHIBIT F
TO
CREDIT AGREEMENT
QUARTERLY COMPLIANCE CERTIFICATE
I have conducted a review of the terms and conditions of the Second
Amended and Restated Revolving Credit Agreement dated as of May 25, 2001, (the
"AGREEMENT"), the Notes and the other Loan Documents, and the financial
statements of the Company. Defined terms used herein without definition are used
as defined in the Agreement. Such review has not disclosed nor does the signer
have any knowledge of the existence as of the date of this certificate of any
condition or event which constitutes a Potential Default or Event of Default.
I further certify that all representations and warranties contained
in the Agreement are true and correct in all material respects with the same
effect as though such representations and warranties were made on the date of
this certificate (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date was true and correct
as of such specified date).
Attached are Schedules 1, 2 and 3 which are detailed calculations
indicating compliance with the covenants contained in Sections 6.01, 6.02 and
6.03 of the Agreement as of the date of this certificate.
Date: By________________________________________
Title:________________________________
EXHIBIT G
TO
CREDIT AGREEMENT
TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date specified in Item 1 of
Schedule I hereto, among the Transferor Lender specified in Item 2 of Schedule I
hereto (the "TRANSFEROR LENDER"), each Purchasing Lender specified in Item 3 of
Schedule I hereto (each a "PURCHASING LENDER") and Bank of America National
Trust and Savings Association, as Administrative Agent for the Lenders under the
Revolving Credit Agreement described below.
RECITALS:
A. This Transfer Supplement is being executed and delivered in
accordance with Section 10.14(c) of the Second Amended and Restated Revolving
Credit Agreement, dated as of May 25, 2001, by and among XXXXXX XXXXXXX LLC, a
Delaware limited liability company (the "COMPANY"), the Borrowing Subsidiaries
party thereto from time to time, the Guarantors party thereto from time to time,
the Lenders party thereto from time to time and Bank of America National Trust
and Savings Association, as Administrative Agent for the Lenders (as the same
may be amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"). Capitalized terms used herein without definition have the meaning
specified in the Credit Agreement.
B. Each Purchasing Lender (if it is not already a Lender) wishes to
become a Lender party to the Credit Agreement.
C. The Transferor Lender is selling and assigning to each Purchasing
Lender, and each Purchasing Lender is purchasing and assuming, a certain portion
of the Transferor Lender's rights and obligations under the Credit Agreement,
including, without limitation, the Transferor Lender's Commitments, Loans owing
to it, Swingline Advance Participating Interest, Letter of Credit Obligations
owing to it and any Notes held by it (the "TRANSFEROR LENDER'S INTERESTS").
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. TRANSFER EFFECTIVE NOTICE. Upon receipt by the Administrative
Agent of five counterparts of this Transfer Supplement (to each of which is
attached a fully completed Schedule I and Schedule II), and each of which has
been executed by the Transferor Lender, by each Purchasing Lender and by any
other Person required by Section 10.14(c) of the Credit Agreement to execute
this Transfer Supplement, the Administrative Agent will transmit to Company, the
Transferor Lender and each Purchasing Lender a transfer effective notice,
substantially in the form of Schedule III to this Transfer Supplement (a
"TRANSFER EFFECTIVE NOTICE"). The date specified in such Transfer Effective
Notice as the date on which the transfer effected by this Transfer Supplement
shall become effective (the "TRANSFER EFFECTIVE DATE") shall be the fifth
Business Day following the date of such Transfer Effective Notice or such other
date as shall be agreed upon among the Transfer Lender, the Purchasing Lender,
the Administrative Agent and the Company. From and after the Transfer Effective
Date, each Purchasing Lender (if not already a Lender party to the Credit
Agreement) shall be a Lender party to the Credit Agreement for all purposes
thereof having the respective interests in the Transferor Lender's interests
reflected in this Transfer Supplement.
2. PURCHASE PRICE; SALE. At or before 12:00 Noon, local time at the
Transferor Lender's office specified in Schedule III, on the Transfer Effective
Date, each Purchasing Lender shall pay to the Transferor Lender, in immediately
available funds, an amount equal to the purchase price, as agreed between the
Transferor Lender and such Purchasing Lender (the "PURCHASE PRICE"), of the
portion being purchased by such Purchasing Lender (such Purchasing Lender's
"PURCHASED PERCENTAGE") of the Transferor Lender's Interests. Effective upon
receipt by the Transferor Lender of the Purchase Price from a Purchasing Lender,
the Transferor Lender hereby irrevocably sells, assigns and transfers to such
Purchasing Lender, without recourse, representation or warranty (express or
implied) except as set forth in Section 6 hereof, and each Purchasing Lender
hereby irrevocably purchases, takes and assumes from the Transferor Lender such
Purchasing Lender's Purchased Percentage of the Transferor Lender's Interests.
The Transferor Lender shall promptly notify the Administrative Agent of the
receipt of the Purchase Price from a Purchasing Lender ("PURCHASE PRICE RECEIPT
NOTICE"). Upon receipt by the Administrative Agent of such Purchase Price
Receipt Notice, the Administrative Agent shall record in the Register the
information with respect to such sale and purchase as contemplated by Section
10.14(d) of the Credit Agreement.
3. PRINCIPAL, INTEREST AND FEES. All principal payments, interest,
fees and other amounts that would otherwise be payable from and after the
Transfer Effective Date to or for the account of the Transferor Lender in
respect of the Transferor Lender's Interests shall, instead, be payable to or
for the account of the Transferor Lender and the Purchasing Lenders, as the case
may be, in accordance with their respective interests as reflected in this
Transfer Supplement.
4. CLOSING DOCUMENTS. Concurrently with the execution and delivery
hereof, the Transferor Lender will request that the Administrative Agent provide
to each Purchasing Lender (if it is not already a Lender party to the Credit
Agreement) conformed copies of all documents delivered to such Transferor Lender
on the Closing Date in satisfaction of conditions precedent set forth in the
Credit Agreement.
5. FURTHER ASSURANCES. Each of the parties to this Transfer
Supplement agrees that at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Transfer Supplement.
6. CERTAIN REPRESENTATIONS AND AGREEMENTS. By executing and
delivering this Transfer Supplement, the Transferor Lender and each Purchasing
Lender confirm to and agree with each other and the Administrative Agent and the
Lenders as follows:
(a) Other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned hereby
free and clear of any adverse claim, the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect
to (i) the execution, delivery, effectiveness, enforceability,
genuineness, validity or adequacy of the Credit Agreement or any
other Loan Document, (ii) any recital, representation, warranty,
document, certificate, report or statement in, provided for in,
received under or in connection with, the Credit Agreement or any
-2-
other Loan Document, or (iii) the existence, validity,
enforceability, perfection, recordation, priority, adequacy or value,
now or hereafter, of any Lien or other direct or indirect security
afforded or purported to be afforded by any of the Loan Documents or
otherwise from time to time.
(b) The Transferor Lender makes no representation or
warranty and assumes no responsibility with respect to (i) the
performance or observance of any of the terms or conditions of the
Credit Agreement or any other Loan Document on the part of any
Borrower or any other Person, (ii) the business, operations,
condition (financial or otherwise) or prospects of the Borrower or
any other Person, or (iii) the existence of any Event of Default or
Potential Default.
(c) Each Purchasing Lender confirms that it has received
a copy of the Credit Agreement and each of the other Loan Documents,
together with copies of the financial statements referred to in
Section 3.06 thereof, the most recent financial statements delivered
pursuant to Section 5.01 thereof, if any, and such other documents
and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Transfer
Supplement. Each Purchasing Lender confirms that it has made such
analysis and decision independently and without reliance upon the
Administrative Agent, the other Agents, the Transferor Lender or any
other Lender.
(d) Each Purchasing Lender, independently and without
reliance upon the Administrative Agent, the other Agents, the
Transferor Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, will make
its own decisions to take or not take action under or in connection
with the Credit Agreement or any other Loan Document.
(e) Each Purchasing Lender irrevocably appoints the
Administrative Agent to act as Administrative Agent for such
Purchasing Lender under the Agreement and the other Loan Documents,
all in accordance with Article VIII of the Credit Agreement and the
other provisions of the Credit Agreement and the other Loan
Documents.
(f) Each Purchasing Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement and the other Loan Documents are required to
be performed by it as a Lender.
7. SCHEDULE II. Schedule II hereto sets forth the revised
Commitments of the Transferor Lender and each Purchasing Lender as well as
administrative information with respect to each Purchasing Lender.
8. GOVERNING LAW. This Transfer Supplement shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of choice of law.
9. COUNTERPARTS. This Transfer Supplement may be executed on any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Supplement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item I of Schedule I hereto.
-4-
SCHEDULE I
TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Second Amended and Restated Revolving Credit Agreement, dated as of
May 25, 2001, by and among Xxxxxx Xxxxxxx LLC, a Delaware limited
liability company (the "COMPANY"), the Borrowing Subsidiaries party
thereto from time to time, the Guarantors party thereto from time to
time, the Lenders party thereto from time to time and Bank of America
National Trust and Savings Association, as Administrative Agent for
the Lenders (as amended, modified or supplemented from time to time,
the "CREDIT AGREEMENT")
Item I (Date of [INSERT DATE OF
Assignment Supplement): ASSIGNMENT SUPPLEMENT]
Item 2 (Transferor Lender): [INSERT NAME OF TRANSFEROR
LENDER]
Item 3 (Purchasing Lender[s]): [INSERT NAME[S] OF
PURCHASING LENDER[S]]
Item 4 (Signatures of Parties
to Transfer Supplement):
[NAME OF TRANSFEROR LENDER]
----------------------------------
as Transferor Lender
By:
Title:
[NAME OF PURCHASING LENDER]
----------------------------------
as Purchasing Lender
By:
Title:
[NAME OF PURCHASING LENDER]
----------------------------------
as Purchasing Lender
By:
Title:
[FOLLOWING TWO CONSENTS REQUIRED ONLY WHEN
PURCHASING LENDER IS NOT ALREADY A LENDER
[OR AN AFFILIATE OF A LENDER]]
CONSENTED TO AND ACKNOWLEDGED:
XXXXXX XXXXXXX LLC
BY: Foreign Holdings Ltd., its sole member
By:___________________________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:___________________________________________
Title:
ACCEPTED FOR RECORDATION IN
PURCHASING LENDER REGISTER:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:___________________________________________
Title:
-2-
SCHEDULE II
TO
TRANSFER SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITTED AMOUNTS
[NAME OF TRANSFEROR LENDER] REVISED COMMITMENT AND LOAN AMOUNTS:
Revolving Credit Committed Amount $__________
Additional Committed Amount $__________
Swingline Advance Committed Amount $__________
REVISED COMMITMENT PERCENTAGE: __________
[NAME OF PURCHASING LENDER] NEW COMMITMENT AND LOAN AMOUNTS:
Revolving Credit Committed Amount $__________
Additional Committed Amount $__________
Swingline Advance Committed Amount $__________
NEW COMMITMENT PERCENTAGE: __________
Administrative Information
For Purchasing Lender:
Address:__________________________________
__________________________________
Attention:________________________________
Telephone:________________________________
Telex:____________________________________
(Answerback:____________________________)
Telecopier:_______________________________
SCHEDULE III
TO
TRANSFER SUPPLEMENT
TRANSFER EFFECTIVE NOTICE
To: [INSERT NAME OF BORROWER, TRANSFEROR
LENDER AND EACH PURCHASING LENDER]
The undersigned, as Administrative Agent under the Second Amended and
Restated Revolving Credit Agreement, dated as of May 25, 2001, by and among
Xxxxxx Xxxxxxx LLC, a Delaware limited liability company (the "COMPANY"), the
Borrowing Subsidiaries party thereto from time to time, the Guarantors party
thereto from time to time, the Lenders party thereto from time to time and Bank
of America National Trust and Savings Association, as Administrative Agent for
the Lenders (as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), acknowledges receipt of five executed counterparts of a completed
Transfer Supplement, dated _________, ____, from [NAME OF TRANSFEROR LENDER] to
[NAME OF EACH PURCHASING LENDER] (the "TRANSFER SUPPLEMENT"). Terms defined in
the Transfer Supplement are used herein as therein defined.
1. Pursuant to the Transfer Supplement, you are advised that the
Transfer Effective Date will be _________, ____. [INSERT FIFTH BUSINESS DAY
FOLLOWING DATE OF TRANSFER EFFECTIVE NOTICE OR OTHER DATE AGREED TO AMONG THE
TRANSFEROR LENDER, THE PURCHASING LENDER, THE ADMINISTRATIVE AGENT AND THE
BORROWER.]
2. Pursuant to Section 10.14(c) of the Credit Agreement, the
Transferor Lender has delivered to the Administrative Agent the Transferor
Lender Notes.
3. Section 10.14(c) of the Credit Agreement provides that, to the
extent requested by the Purchasing Lender, the Borrowers are to deliver to the
Administrative Agent on or before the Assignment Effective Date the following
Notes, each dated the date of the Note it replaces.
[DESCRIBE EACH NEW REVOLVING CREDIT NOTE, SWINGLINE ADVANCE NOTE AND
COMPETITIVE BID NOTE FOR TRANSFEROR LENDER AND PURCHASING LENDER AS TO DATE (AS
REQUIRED BY THE CREDIT AGREEMENT), PRINCIPAL AMOUNT AND PAYEE.]
4. The Transfer Supplement provides that each Purchasing Lender is
to pay its Purchase Price to the Transferor Lender at or before 12:00 o'clock
Noon, local time at the Transferor Lender's lending office specified in Schedule
II to the Transfer Supplement, on the Transfer Effective Date in immediately
available funds.
Very truly yours,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:
Title:
EXHIBIT H
SUBSIDIARY GUARANTY AGREEMENT
------------ --, ----
Bank of America National Trust and
Savings Association, as Administrative
Agent for the Lenders party to the
Second Amended and Restated Revolving
Credit Agreement dated as of May 25,
2001 among Xxxxxx Xxxxxxx LLC (the
"COMPANY"), the Borrowing Subsidiaries
party thereto from time to time, the
Guarantors party thereto from time to
time, the Lenders party thereto from
time to time, and Bank of America
National Trust and Savings Association,
as Administrative Agent (the "CREDIT
AGREEMENT")
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [NAME OF SUBSIDIARY GUARANTOR], a [JURISDICTION OF
INCORPORATION] corporation, hereby acknowledges that it is a "GUARANTOR" for all
purposes of the Credit Agreement, effective from the date hereof. The
undersigned confirms that the representations and warranties set forth in
Section 3 of the Credit Agreement are true and correct as to the undersigned as
of the date hereof (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct in all material respects only as of such specified date).
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to be
bound in all respects by the terms of, the Credit Agreement, including without
limitation Article IX thereof, to the same extent and with the same force and
effect as if the undersigned were a direct signatory thereto.
This Agreement shall be construed in accordance with and governed by
the internal laws of the State of New York.
Very truly yours,
[NAME OF SUBSIDIARY GUARANTOR]
By
Title:_______________________________________
EXHIBIT I
JOINDER TO REVOLVING CREDIT AGREEMENT
------------ --, ----
Bank of America National Trust and
Savings Association, as Administrative
Agent for the Lenders party to the
Second Amended and Restated Revolving
Credit Agreement dated as of May 25,
2001 among Xxxxxx Xxxxxxx LLC (the
"COMPANY"), Borrowing Subsidiaries party
thereto from time to time, the
Guarantors party thereto from time to
time, the Lenders party thereto from
time to time, and Bank of America
National Trust and Savings Association,
as Administrative Agent (the "CREDIT
AGREEMENT")
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
Pursuant to Section 1.04 of the Credit Agreement, the undersigned
hereby joins in the Credit Agreement for the purposes of becoming a party
thereto as one of the "Lenders" and agrees to comply with all of the terms and
conditions of the Credit Agreement. The undersigned agrees (i) to undertake all
of the obligations of a Lender under the Credit Agreement and (ii) to provide
the Revolving Credit Commitment in the amount set forth below under the terms
and conditions in the Credit Agreement. The undersigned hereby irrevocably
appoints the Administrative Agent to act as Administrative Agent for the
undersigned under the Credit Agreement and the other Loan Documents, all in
accordance with Article VIII of the Credit Agreement and the other provisions of
the Credit Agreement and the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of
the date first above written.
________________________________________________,
as Lender
By:______________________________________________
Title:________________________________________
Revolving Credit
Commitment Amount: $__________________________
Address for Notices:
_________________________________________________
_________________________________________________
_________________________________________________
Attention:_______________________________________
Telephone:_______________________________________
Telecopier:______________________________________
EXHIBIT J
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of May 25, 2001 (as amended, modified or
supplemented from time to time, this "AGREEMENT"), made by each of the
undersigned pledgors (each a "PLEDGOR", and together with any entity that
becomes a party hereto pursuant to Section 19 hereof, the "PLEDGORS"), in favor
of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as collateral agent,
for the benefit of the Secured Creditors (as defined below) (in such capacity
and together with any successor thereto, the "PLEDGEE"). Except as otherwise
defined herein, terms used herein and defined in the Credit Agreement (as
defined below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, Xxxxxx Xxxxxxx LLC (the "COMPANY"), the Borrowing
Subsidiaries party thereto from time to time, the Guarantors from time to time
party thereto, various lenders from time to time party thereto (the "BANKS"),
ABN AMRO Bank N.V. and First Union National Bank, as Documentation Agent and
Syndication Agent, respectively (in such capacity, the "DOCUMENTATION AGENT" and
the "SYNDICATION AGENT", respectively), and Bank of America National Trust and
Savings Association, as Administrative Agent (in such capacity and together with
any successor thereto, the "ADMINISTRATIVE AGENT" and, together with the
Pledgee, the Documentation Agent, the Syndication Agent and the Banks and their
respective successors and assigns, the "BANK CREDITORS"), have entered into a
Second Amended and Restated Revolving Credit Agreement, dated as of May 25,
2001, providing for the extensions of credit to the Borrowers as contemplated
therein (as used herein, the term "CREDIT AGREEMENT" means the Credit Agreement
described above in this paragraph, as the same may be amended, modified,
extended, renewed, replaced, restated, supplemented or refinanced from time to
time, and including any agreement extending the maturity of, or refinancing or
restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) all
or any portion of, the indebtedness under such agreement or any successor
agreement, whether or not with the same agent, trustee, representative, lenders
or holders);
WHEREAS, pursuant to the terms of the Credit Agreement, the Pledgors
have either guaranteed or have agreed to be jointly and severally liable to the
Bank Creditors for the payment when due of all obligations and liabilities of
the Borrowers under or with respect to the Loan Documents;
WHEREAS, Xxxxxx Xxxxxxx Corporation on November 15, 1995 issued
$200,000,000 in aggregate principal amount of its 6-3/4% Notes due November 15,
2005 (the "6-3/4% NOTES") (with the holders from time to time of such 6-3/4%
Notes being herein called the "NOTEHOLDERS") pursuant to an Indenture, dated as
of November 15, 1995, by and between Xxxxxx Xxxxxxx Corporation and Xxxxxx Trust
and Savings Bank, as trustee (together with any successor thereto, the
"TRUSTEE") on behalf of the Noteholders (as amended, modified or supplemented
from time to time, the "INDENTURE");
WHEREAS, the Pledgors have issued guarantees of the payment when due
of all of the obligations and liabilities of Xxxxxx Xxxxxxx LLC (as successor by
merger to Xxxxxx Xxxxxxx Corporation) under or with respect to the 6-3/4% Notes
and the Indenture (with any such guarantees, together with the 6-3/4% Notes and
Indenture being herein collectively called the "NOTE DOCUMENTS");
WHEREAS, it is a condition to the extensions of credit under the
Credit Agreement, and the Indenture requires, concurrently with the execution
and delivery of the Credit Agreement by the Borrowing Subsidiaries, that each
Pledgor shall have executed and delivered to the Pledgee this Agreement;
WHEREAS, it is contemplated that the Pledged Instruments (as defined
below) will be pledged to secure the "CREDIT DOCUMENT OBLIGATIONS" and the "NOTE
OBLIGATIONS" and all other amounts comprising "Obligations" (as each such term
is hereinafter defined) on an equal and ratable basis, as contemplated hereby,
and that in connection therewith, the Pledgee, as collateral agent hereunder,
shall act as the "Collateral Agent" for the benefit of the Bank Creditors, the
Noteholders and the other Secured Creditors; and
WHEREAS, each Pledgor desires to execute this Agreement to satisfy
the conditions described in the second preceding paragraph;
NOW, THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
and hereby covenants and agrees with the Pledgee as follows:
SECTION 1. SECURITY FOR OBLIGATIONS; DEFINITIONS.
(a) This Agreement is made by each Pledgor in favor of the Pledgee
for the benefit of the Bank Creditors, the Noteholders and the Trustee
(collectively, together with the Pledgee, the "SECURED CREDITORS"), to secure on
an equal and ratable basis:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due (the
"BANKRUPTCY CODE" as used herein shall mean Title 11 of the United
States Code entitled "BANKRUPTCY" as now or hereafter in effect, or
any successor thereto) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of such Pledgor
to the Bank Creditors, whether now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement and
all other Loan Documents to which it is at any time a party
(including, without limitation, all such obligations and liabilities
of such Pledgor under the Credit Agreement and under any guaranty by
it of the obligations under the Credit Agreement) and the due
performance and compliance by such Pledgor with the terms of each
such Loan Document (all such obligations and liabilities under this
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clause (i) being herein collectively called the "CREDIT DOCUMENT
OBLIGATIONS");
(ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations
(including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and
liabilities (including, without limitation, indemnities, fees and
interest thereon) of such Pledgor to the Noteholders and the Trustee,
whether now existing or hereafter incurred under, arising out of or
in connection with the Note Documents to which such Pledgor is at any
time a party (including, without limitation, all such obligations and
liabilities of such Pledgor under the Indenture or any guaranty by it
of the obligations under the Indenture) and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements on its part contained in each such Note Document (all such
obligations and liabilities under this clause (ii) being herein
collectively called the "NOTE OBLIGATIONS");
(iii) any and all sums advanced by the Pledgee in
order to preserve the Collateral (as hereinafter defined) or preserve
its security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities referred
to in clauses (i) through (iii) above, after an Event of Default
(such term, as used in this Agreement, shall mean (a) any "Event of
Default" at any time under, and as defined in, the Credit Agreement,
and (b) any payment default (after the expiration of any applicable
grace period) on any of the Obligations secured hereunder at such
time) shall have occurred and be continuing, the reasonable expenses
of retaking, holding, preparing for sale or otherwise disposing or
realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court
costs; and
(v) all amounts paid by any Secured Creditor as to which
such Secured Creditor has the right to reimbursement under Section 9
of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1, being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the type described above, whether outstanding on
the date of this Agreement or extended from time to time after the date of this
Agreement.
(b) As used herein, the term "Instruments" shall mean (i) a
promissory note dated February 10, 1999 of Xxxxxx Xxxxxxx Constructors, Inc.
("CONSTRUCTORS") in the amount of $10,000,000 payable to the order of Xxxxxx
Xxxxxxx USA Corporation; (ii) a promissory note dated February 10, 1999 of
Constructors in the amount of $10,000,000 payable to the order of Xxxxxx Xxxxxxx
Energy International, Inc., (iii) a promissory note dated February 10, 1999 of
Constructors in the amount of $10,000,000 payable to the order of Xxxxxx Xxxxxxx
Energy Corporation, (iv) a promissory note dated May 25, 2001 of Xxxxxx Xxxxxxx
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International Holdings, Inc. in the amount of $10,000,000 payable to the order
of Xxxxxx Xxxxxxx US Holdings, Inc., and (v) a promissory note dated May 25,
2001 of Xxxxxx Xxxxxxx US Holdings, Inc. in the amount of $10,000,000 payable to
the order of Xxxxxx Xxxxxxx International Holdings, Inc.
(c) All Instruments at any time pledged or required to be pledged
hereunder is hereinafter called the "Pledged Instruments," which together with
(i) all proceeds thereof, including any instruments, securities and moneys
received and at the time held by the Pledgee hereunder, and (ii) all principal,
interest, cash, rights, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Instruments are hereinafter called the
"Collateral".
SECTION 2. PLEDGE OF INSTRUMENTS.
To secure all Obligations of such Pledgor and for the purposes set
forth in Section 1 hereof, each Pledgor hereby: (i) grants to the Pledgee a
first priority security interest in all of the Collateral owned by such Pledgor;
(ii) pledges and deposits as security with the Pledgee the Pledged Instruments
owned by such Pledgor on the date hereof, and delivers to the Pledgee such
Pledged Instruments, duly endorsed in blank by such Pledgor, or such other
instruments of transfer as are reasonably acceptable to the Pledgee; and (iii)
assigns, transfers, hypothecates, mortgages, charges and sets over to the
Pledgee all of such Pledgor's right, title and interest in and to such Pledged
Instrument, to be held by the Pledgee, upon the terms and conditions set forth
in this Agreement.
SECTION 3. RIGHTS, ETC., WHILE NO EVENT OF DEFAULT.
Unless and until an Event of Default shall have occurred and be
continuing, each Pledgor shall be entitled to exercise any and all rights
pertaining to the Pledged Instruments; PROVIDED, that no action shall be taken
which would violate or be inconsistent with any of the terms of this Agreement
or any other Secured Debt Agreement (as hereinafter defined). All such rights of
such Pledgor shall cease in case an Event of Default shall occur and be
continuing, and Section 5 hereof shall become applicable.
SECTION 4. INTEREST AND OTHER DISTRIBUTIONS.
Except as provided in Section 5 hereof, all payments in respect of
the Pledged Instruments shall be paid to the respective Pledgor.
SECTION 5. REMEDIES IN CASE OF EVENT OF DEFAULT.
In case an Event of Default shall have occurred and be continuing,
the Pledgee shall be entitled to exercise all of its rights, powers and remedies
(whether vested in it by this Agreement, by any other Loan Document, or by any
Note Document (with all of the Documents listed above being herein collectively
called the "SECURED DEBT AGREEMENTS") or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Pledgee shall be
entitled to exercise all the rights and remedies of a secured party under the
Uniform Commercial Code and also shall be entitled, without limitation, to
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exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable to such Pledgor under Section 4 hereof;
(ii) to instruct makers of the Pledged Instruments to
make any and all payments in respect of the Pledged Instruments
directly to the Pledgee;
(iii) to transfer all or any part of the Pledged
Instruments into the Pledgee's name or the name of its nominee or
nominees;
(iv) to take any action in respect of the Collateral and
otherwise act with respect thereto as though it were the outright
owner thereof; and
(v) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention
to sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion
may determine; PROVIDED, that at least 10 Business Days' notice of
the time and place of any such sale shall be given to such Pledgor.
Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to
the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security
for the Obligations or otherwise. At any such sale, unless prohibited
by applicable law, the Pledgee on behalf of the Secured Creditors may
bid for and purchase all or any part of the Collateral so sold free
from any such right or equity of redemption. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim
or right on the part of any Pledgor, and each Pledgor hereby waives
(to the extent permitted by law) all rights of redemption, stay
and/or appraisal which it now has or may at any time in the future
have under any rule of law or statute now existing or hereafter
enacted. The Pledgee may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place
to which it was so adjourned. Each Pledgor hereby waives any claims
against the Pledgee arising by reason of the fact that the price at
which any Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale,
even if the Pledgee accepts the first offer received and does not
offer such Collateral to more than one offeree. If the proceeds of
any sale or other disposition of the Collateral are insufficient to
pay all the Obligations, the Pledgors shall be liable for the
deficiency and the fees of any attorneys employed by the Pledgee to
collect such deficiency. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any
or all of the Collateral or for any delay in so doing nor shall any
of them be under any obligation to take any action whatsoever with
regard thereto.
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SECTION 6. REMEDIES, ETC., CUMULATIVE.
Each right, power and remedy of the Pledgee provided for in this
Agreement or in any other Secured Debt Agreement or now or hereafter existing at
law or in equity or by statute shall be cumulative and concurrent and shall be
in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Pledgee or any other Secured Creditor of any
one or more of the rights, powers or remedies provided for in this Agreement or
in any other Secured Debt Agreement or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by the Pledgee or any other Secured Creditor of all such other rights,
powers or remedies, and no failure or delay on the part of the Pledgee or any
other Secured Creditor to exercise any such right, power or remedy shall operate
as a waiver thereof. The Secured Creditors agree that this Agreement may be
enforced only by the Pledgee acting upon the instructions of the Required
Secured Creditors (as defined in Annex A hereto) and that no other Secured
Creditor shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement.
SECTION 7. APPLICATION OF PROCEEDS.
(a) All moneys collected by the Pledgee upon any sale or other
disposition of the Collateral of each Pledgor, together with all other moneys
received by the Pledgee hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to the
Pledgee of the type provided in clauses (iii), (iv) and (v) of the
definition of Obligations in Section 1 hereof;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Obligations shall be paid to the Secured Creditors as
provided in Section 7(d) hereof, with each Secured Creditor receiving
an amount equal to its outstanding Obligations of such Pledgor or, if
the proceeds are insufficient to pay in full all such Obligations,
its Pro Rata Share (as hereinafter defined) of the amount remaining
to be distributed; and
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii),
inclusive, and following the termination of this Agreement pursuant
to Section 15 hereof, to the relevant Pledgor or to whomever may be
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which is
the then unpaid amount of such Secured Creditor's Obligations and the
denominator of which is the then outstanding amount of all Obligations.
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(c) If the Bank Creditors are to receive a distribution in accordance
with the procedures set forth above in this Section 7 on account of undrawn
amounts with respect to letters of credit issued under the Credit Agreement,
such amounts shall be paid to the Administrative Agent under the Credit
Agreement and held by it, for the equal and ratable benefit of the Bank
Creditors as such. If any amounts are held as cash security pursuant to the
immediately preceding sentence, then upon the termination of all outstanding
letters of credit, and after the application of all such cash security to the
repayment of all Obligations owing to the Bank Creditors after giving effect to
the termination of all such letters of credit, if there remains any excess cash,
such excess cash shall be returned by the Administrative Agent to the Pledgee
for distribution in accordance with Section 7(a) hereof.
(d) Except as set forth in Section 7(c) hereof, all payments required
to be made hereunder shall be made (i) if to the Bank Creditors, to the
Administrative Agent under the Credit Agreement for the account of the Bank
Creditors, and (ii) if to any other Secured Creditors (other than the Pledgee),
to the Trustee or paying agent (each a "REPRESENTATIVE") for such Secured
Creditors or, in the absence of such a Representative, directly to the other
Secured Creditors.
(e) For purposes of applying payments received in accordance with
this Section 7, the Pledgee shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
any other Secured Creditors or, in the absence of such a Representative, upon
the respective Secured Creditors for a determination (which the Administrative
Agent, each Representative for any other Secured Creditors and the Secured
Creditors agree (or shall agree) to provide upon request of the Pledgee) of the
outstanding Primary Obligations and Secondary Obligations owed to the Secured
Creditors.
(f) It is understood and agreed that each Pledgor shall remain liable
to the extent of any deficiency between the amount of the proceeds of the
Collateral pledged by it hereunder and the aggregate amount of the Obligations
of such Pledgor.
SECTION 8. PURCHASERS OF COLLATERAL.
Upon any sale of the Collateral by the Pledgee hereunder (whether by
virtue of the power of sale herein granted, pursuant to judicial process or
otherwise), the receipt of the Pledgee or the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold,
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Pledgee or such
officer or be answerable in any way for the misapplication or nonapplication
thereof.
SECTION 9. INDEMNITY.
Each Pledgor jointly and severally agrees (i) to indemnify and hold
harmless the Pledgee in such capacity and each Representative of a Secured
Creditor in its capacity as such from and against any and all claims, demands,
losses, judgments and liabilities of whatsoever kind or nature, and (ii) to
reimburse the Pledgee in such capacity and each Representative of a Secured
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Creditor in its capacity as such for all reasonable costs and expenses,
including reasonable attorneys' fees, in each case to the extent growing out of
or resulting from the exercise by the Pledgee of any right or remedy granted to
it hereunder except, with respect to clauses (i) and (ii) above, to the extent
arising from the Pledgee's or such other Secured Creditor's gross negligence or
willful misconduct. In no event shall the Pledgee be liable, in the absence of
gross negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for moneys actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of the Pledgors under this Section 9 are unenforceable for any
reason, each Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
SECTION 10. FURTHER ASSURANCES; POWER OF ATTORNEY.
(a) Each Pledgor agrees that it will join with the Pledgee in
executing and, at such Pledgor's own expense, file and refile under the
applicable Uniform Commercial Code or such other law such financing statements,
continuation statements and other documents in such offices as the Pledgee may
reasonably deem necessary or appropriate and wherever required or permitted by
law in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably deem necessary or advisable to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time after the
occurrence and during the continuance of an Event of Default in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Section 10.
SECTION 11. THE PLEDGEE AS AGENT.
The Pledgee will hold in accordance with this Agreement all items of
the Collateral at any time received under this Agreement. It is expressly
understood and agreed that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set forth
herein and in Annex A hereto, the terms of which shall be deemed incorporated
herein by reference as fully as if same were set forth herein in their entirety.
SECTION 12. TRANSFER BY PLEDGORS.
No Pledgor will sell or otherwise dispose of, grant any option with
respect to, or mortgage, pledge or otherwise encumber any of the Collateral or
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any interest therein (except in accordance with the terms of this Agreement and
as permitted by the terms of the Secured Debt Agreements).
SECTION 13. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, record and beneficial owner of, and
has good title to, all Pledged Instruments purported to be owned by
such Pledgor, subject to no Lien, except the Liens created by this
Agreement;
(ii) it has full power, authority and legal right to
pledge all the Pledged Instruments;
(iii) this Agreement has been duly authorized, executed
and delivered by such Pledgor and constitutes the legal, valid and
binding obligation of such Pledgor enforceable in accordance with its
terms, except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) no consent of any other party (including, without
limitation, any stockholder or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required to
be obtained by such Pledgor in connection with the execution,
delivery or performance of this Agreement, or in connection with the
exercise of its rights and remedies pursuant to this Agreement, in
each case except those which have been obtained or made or as may be
required by laws affecting the offer and sale of securities generally
in connection with the exercise by the Pledgee of certain of its
remedies hereunder;
(v) the execution, delivery and performance of this
Agreement by such Pledgor does not violate any provision of any
applicable law or regulation or of any order, judgment, writ, award
or decree of any court, arbitrator or governmental authority,
domestic or foreign, or of the certificate of incorporation or
by-laws (or analogous organizational documents) of such Pledgor or of
any securities issued by such Pledgor or any of its Subsidiaries, or
of any mortgage, indenture, lease, deed of trust, credit agreement or
loan agreement, or any other material agreement, contract or
instrument to which such Pledgor or any of its Subsidiaries is a
party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective assets and will not
result in the creation or imposition (or the obligation to create or
impose) of any lien or encumbrance on any of the assets of such
Pledgor or any of its Subsidiaries except as contemplated by this
Agreement;
(vi) all Pledged Instruments have been duly and validly
issued; and
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(vii) the pledge, assignment and delivery (which delivery
has been made) to the Pledgee of the Pledged Instruments creates a
valid and perfected first priority security interest in such Pledged
Instruments, subject to no prior lien or encumbrance or to any
agreement purporting to grant to any third party (except the Secured
Creditors) a lien or encumbrance on the property or assets of such
Pledgor which would include the Instruments.
Each Pledgor covenants and agrees that it will defend the Pledgee's
right, title and security interest in and to the Collateral and the proceeds
thereof against the claims and demands of all persons whomsoever; and such
Pledgor covenants and agrees that it will have like title to and right to pledge
any other property at any time hereafter pledged to the Pledgee as Collateral
hereunder and will likewise defend the right thereto and security interest
therein of the Pledgee and the other Secured Creditors.
(b) The Pledgors hereby agree that the rights created by the
subordinated provisions of the guarantees executed by the Pledgors related to
the Note Documents and the subordination provisions of the Credit Agreement
which each provide for the subordination of the indebtedness of the Borrowers
owing to any Pledgor to the Obligations of the Borrowers owing to the Secured
Creditors shall be on a parity basis for the equal and ratable benefit of the
Secured Creditors.
SECTION 14. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC.
The obligations of each Pledgor under this Agreement shall be
absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (i) any renewal, extension, amendment or modification of or
addition or supplement to or deletion from any Secured Debt Agreement or any
other instrument or agreement referred to therein, or any assignment or transfer
of any thereof; (ii) any waiver, consent, extension, indulgence or other action
or inaction under or in respect of any such agreement or instrument or this
Agreement; (iii) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the Pledgee
or its assignee; (iv) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof; (v)
any limitation on any other Pledgor's liability or obligations under this
Agreement or under any other Secured Debt Agreement or any invalidity or
unenforceability, in whole or in part, of this Agreement or any other Secured
Debt Agreement or any term thereof; or (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to such Pledgor or any Subsidiary of such Pledgor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not such Pledgor shall have notice
or knowledge of any of the foregoing.
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SECTION 15. TERMINATION, RELEASE.
(a) After the Termination Date (as defined below), this Agreement
shall terminate (provided that all indemnities set forth herein including,
without limitation, in Section 9 hereof shall survive any such termination) and
the Pledgee, at the request and expense of the respective Pledgor, will promptly
execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, and will duly
assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Pledgee and as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement. As used in this Agreement, "Termination
Date" shall mean the earliest of (i) the date upon which the Total Revolving
Credit Commitment has been terminated, no Note under the Credit Agreement is
outstanding and all other Credit Document Obligations (excluding normal
continuing indemnity obligations which survive in accordance with their terms,
so long as no amounts are then due and payable in respect thereof) have been
indefeasibly paid in full, (ii) the date upon which the Credit Documents are
amended to release all Collateral subject to this Agreement and (iii) the date
on which the Indenture no longer requires equal and ratable security or the
6-3/4% Notes have been paid in full.
(b) In the event that any part of the Collateral is sold (other than
to any Credit Party) in connection with a sale permitted by the Secured Debt
Agreement or is otherwise released at the direction of the Required Secured
Creditors, the Pledgee, at the request and expense of such Pledgor will promptly
execute and deliver to such Pledgor a proper instrument or instruments
acknowledging such release, and will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral as is then being (or has been) so sold, distributed or released
and as may be in possession of the Pledgee and has not theretofore been released
pursuant to this Agreement.
(c) At any time that a Pledgor desires that Collateral be released as
provided in the foregoing Section 15(a) or (b), it shall deliver to the Pledgee
a certificate signed by an authorized officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to Section 15(a) or
(b), and the Pledgee shall be entitled (but not required) to conclusively rely
thereon.
SECTION 16. NOTICES, ETC.
Except as otherwise specified herein, all notices, requests, demands
or other communications to or upon the respective parties hereto shall be deemed
to have been given or made when delivered to the party to which such notice,
request, demand or other communication is required or permitted to be given or
made under this Agreement, addressed as follows:
-11-
(a) if to any Pledgor, at:
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President and Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Pledgee, at:
Bank of America National Trust and Savings Association
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Bank Creditor (other than the Pledgee), (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreement or (y) at such address as such Bank Creditor shall have
specified in the Credit Agreement;
(d) if to any other Secured Creditor, (x) to the Representative for
such Secured Creditor or (y) if there is no such Representative, at such address
as such Secured Creditor shall have specified in writing to each Pledgor and the
Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
SECTION 17. WAIVER; AMENDMENT.
None of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever unless in writing duly
signed by each Pledgor directly affected thereby (it being understood that
additional Pledgors may be added as parties hereto from time to time in
accordance with Section 19 hereof and Pledgors may be released as parties hereto
in accordance with Sections 15 and 18 hereof and that no consent of any other
Pledgor or of the Secured Creditors shall be required in connection therewith)
and the Pledgee (with the written consent of the Required Lenders (or all the
Lenders if required by Section 10.03 of the Credit Agreement); PROVIDED, that
the Company certifies that any such change, waiver, modification or variance is
otherwise permitted by the terms of the respective Secured Debt Agreements or,
if not so permitted, that the requisite consents therefor have been obtained.
Notwithstanding anything to the contrary contained above, it is understood and
agreed that the Required Lenders may agree to modifications to this Agreement
for the purpose, among other things, of securing additional extensions of credit
(including, without limitation, pursuant to the Credit Agreement or any
refinancing or extension thereof), with such changes not being subject to the
proviso to the immediately preceding sentence. Furthermore, the proviso to the
-12-
second preceding sentence shall not apply to any release of Collateral effected
in accordance with the requirements of Section 18 of this Agreement, or any
other release of Collateral or termination of this Agreement so long as the
certifies that such actions will not violate the terms of any Secured Debt
Agreement then in effect.
SECTION 18. RELEASE.
In the event any Pledgor is released from either its guaranty
obligation or its joint and several obligation under the Credit Agreement, such
Pledgor shall be released from this Agreement and this Agreement shall, as to
such Pledgor only, have no further force or effect.
SECTION 19. ADDITIONAL PLEDGORS.
Pursuant to Section 5.15 of the Credit Agreement, certain
Subsidiaries of the Company may after the date hereof be required to enter into
this Agreement as a Pledgor. Upon execution and delivery, after the date hereof,
by the Pledgee and such Subsidiary of an instrument in the form of Exhibit A-2,
such Subsidiary shall become a Pledgor hereunder with the same force and effect
as if originally named as a Pledgor hereunder. Each Subsidiary which is required
to become a party to this Agreement shall so execute and deliver a copy of
Exhibit A-2 to the Pledgee and, at such time, shall execute a Pledge and
Security Agreement Supplement in the form of Exhibit A-1 to this Agreement with
respect to all Collateral of such Pledgor required to be pledged hereunder,
which Supplement shall be completed in accordance with Exhibit A-1. The
execution and delivery of any such instrument shall not require the consent of
any other Pledgor hereunder. Upon the execution and delivery by the Pledgee and
such Subsidiary of an instrument in the form of Exhibit A-2 as provided above,
it is understood and agreed that the pledge and security interests hereunder
shall apply to all Collateral of such additional Pledgor as provided in Section
2 hereof regardless of any failure of any additional Pledgor to deliver, or any
inaccurate information stated in, the Pledge and Security Agreement Supplement.
SECTION 20. RECOURSE.
This Agreement is made with full recourse to the Pledgors and
pursuant to and upon all representations, warranties, covenants and agreements
on the part of the Pledgors contained herein and otherwise in writing in
connection herewith.
SECTION 21. PLEDGEE NOT BOUND.
(a) The Pledgee shall not be obligated to perform or discharge any
obligation of any Pledgor as a result of the collateral assignment hereby
effected.
(b) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee to appear in or defend any action or proceeding
relating to the Collateral to which it is not a party, or to take any action
hereunder or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral.
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SECTION 22. CONTINUING PLEDGORS.
The rights and obligations of each Pledgor (other than the respective
released Pledgor in the case of following clause (y)) hereunder shall remain in
full force and effect notwithstanding (x) the addition of any new Pledgor as a
party to this Agreement as contemplated by Section 19 hereof or otherwise and/or
(y) the release of any Pledgor under this Agreement as contemplated by Section
18 hereof or otherwise.
SECTION 23. NO FRAUDULENT CONVEYANCE.
Each Pledgor hereby confirms that it is its intention that this
Agreement not constitute a fraudulent transfer or conveyance for purposes of any
bankruptcy, insolvency or similar law, the Uniform Fraudulent Conveyance Act or
any similar Federal, state or foreign law. To effectuate the foregoing
intention, each Pledgor hereby irrevocably agrees that its obligations and
liabilities hereunder shall be limited to the maximum amount as will, after
giving effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Pledgor that are relevant under such laws, result in the
obligations and liabilities of such Pledgor hereunder in respect of such maximum
amount not constituting a fraudulent transfer or conveyance.
SECTION 24. MISCELLANEOUS.
This Agreement shall be binding upon the successors and assigns of
each Pledgor and shall inure to the benefit of and be enforceable by the Pledgee
and its successors and assigns; provided that no Pledgor may assign any of its
rights or obligations hereunder without the prior written consent of the Pledgee
(with the consent of the Required Lenders and, if required by Section 10.03 of
the Credit Agreement, all Lenders). This Agreement shall be construed and
enforced in accordance with and governed by the law of the State of New York
(without regard to principles of conflict of laws). The headings in this
Agreement are for purposes of reference only and shall not limit or define the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall constitute one
instrument.
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IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered by its duly authorized officer on the date first above
written.
XXXXXX XXXXXXX USA CORPORATION
BY:
TITLE:
XXXXXX XXXXXXX ENERGY INTERNATIONAL, INC.
BY:
TITLE:
XXXXXX XXXXXXX ENERGY CORPORATION
BY:
TITLE:
XXXXXX XXXXXXX US HOLDINGS, INC.
By
Title:_________________________________
XXXXXX XXXXXXX INTERNATIONAL HOLDINGS, INC.
By
Title:_________________________________
ACCEPTED AND AGREED TO:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent and Pledgee
By:
Title:
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ANNEX A
TO
PLEDGE AND SECURITY AGREEMENT
THE PLEDGEE
1. APPOINTMENT. The Secured Creditors, by their acceptance of the
benefits of the Pledge Agreement to which this Annex A is attached (the "Pledge
Agreement") hereby irrevocably designate Bank of America National Trust and
Savings Association (and any successor Pledgee) to act as specified herein and
therein. Unless otherwise defined herein, all capitalized terms used herein (x)
and defined in the Pledge Agreement, are used herein as therein defined and (y)
not defined in the Pledge Agreement, are used herein as defined in the Credit
Agreement referenced in the Pledge Agreement. Each Secured Creditor hereby
irrevocably authorizes, and each holder of any Obligation by the acceptance of
such Obligation and by the acceptance of the benefits of the Pledge Agreement
shall be deemed irrevocably to authorize, the Pledgee to take such action on its
behalf under the provisions of the Pledge Agreement and any instruments and
agreements referred to therein and to exercise such powers and to perform such
duties thereunder as are specifically delegated to or required of the Pledge
Agreement by the terms thereof and such other powers as are reasonably
incidental thereto. The Pledgee may perform any of its duties hereunder or
thereunder by or through its authorized agents, sub-agents or employees.
2. NATURE OF DUTIES. (a) The Pledgee shall have no duties or
responsibilities except those expressly set forth herein or in the Pledge
Agreement. The duties of the Pledgee shall be mechanical and administrative in
nature; the Pledgee shall not have by reason of the Pledge Agreement or any
other Secured Debt Agreement a fiduciary relationship in respect of any Secured
Creditor; and nothing in the Pledge Agreement or any other Secured Debt
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Pledgee any obligations in respect of the Pledge Agreement
except as expressly set forth herein and therein.
(b) The Pledgee shall not be responsible for insuring the Collateral
or for the payment of taxes, charges or assessments or discharging of Liens upon
the Collateral or otherwise as to the maintenance of the Collateral.
(c) The Pledgee shall not be required to ascertain or inquire as to
the performance by any Pledgor of any of the covenants or agreements contained
in the Pledge Agreement or any other Secured Debt Agreement.
(d) The Pledgee shall be under no obligation or duty to take any
action under, or with respect to, the Pledge Agreement if taking such action (i)
would subject the Pledgee to a tax in any jurisdiction where it is not then
subject to a tax or (ii) would require the Pledgee to qualify to do business, or
obtain any license, in any jurisdiction where it is not then so qualified or
licensed or (iii) would subject the Pledgee to in personam jurisdiction in any
locations where it is not then so subject.
(e) Notwithstanding any other provision of this Annex A, neither the
Pledgee nor any of its officers, directors, employees, affiliates or agents
shall, in its individual capacity, be personally liable for any action taken or
omitted to be taken by it in accordance with, or pursuant to this Annex A or the
Pledge Agreement except for its own gross negligence or willful misconduct.
3. LACK OF RELIANCE ON THE PLEDGEE. Independently and without
reliance upon the Pledgee, each Secured Creditor, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Pledgor and its
Subsidiaries in connection with the making and the continuance of the
Obligations and the taking or not taking of any action in connection therewith,
and (ii) its own appraisal of the creditworthiness of each Pledgor and its
Subsidiaries, and the Pledgee shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Secured Creditor with any
credit or other information with respect thereto, whether coming into its
possession before the extension of any Obligations or the purchase of any notes
or at any time or times thereafter. The Pledgee shall not be responsible in any
manner whatsoever to any Secured Creditor for the correctness of any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of the Pledge Agreement or the security
interests granted hereunder or the financial condition of any Pledgor or any
Subsidiary of any Pledgor or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
the Pledge Agreement, or the financial condition of any Pledgor or any
Subsidiary of any Pledgor, or the existence or possible existence of any default
or Event of Default. The Pledgee makes no representations as to the value or
condition of the Collateral or any part thereof, or as to the title of any
Pledgor thereto or as to the security afforded by the Pledge Agreement.
4. CERTAIN RIGHTS OF THE PLEDGEE. (a) No Secured Creditor shall have
the right to cause the Pledgee to take any action with respect to the
Collateral, with only the Required Secured Creditors having the right to direct
the Pledgee to take any such action. If the Pledgee shall request instructions
from the Required Secured Creditors, with respect to any act or action
(including failure to act) in connection with the Pledge Agreement, the Pledgee
shall be entitled to refrain from such act or taking such action unless and
until it shall have received instructions from the Required Secured Creditors
and to the extent requested, appropriate indemnification in respect of actions
to be taken, and the Pledgee shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Secured Creditor shall have
any right of action whatsoever against the Pledgee as a result of the Pledgee
acting or refraining from acting hereunder in accordance with the instructions
of the Required Secured Creditors. As used herein, the term "Required Secured
Creditors" shall mean the holders of at least a majority of the then outstanding
Credit Document Obligations.
(b) Notwithstanding anything to the contrary contained herein, the
Pledgee is authorized, but not obligated, (i) to take any action reasonably
-2-
required to perfect or continue the perfection of the liens on the Collateral
for the benefit of the Secured Creditors and (ii) when instructions from the
Required Secured Creditors have been requested by the Pledgee but have not yet
been received, to take any action which the Pledgee, in good faith, believes to
be reasonably required to promote and protect the interests of the Secured
Creditors in the Collateral; PROVIDED that once instructions have been received,
the actions of the Pledgee shall be governed thereby and the Pledgee shall not
take any further action which would be contrary thereto.
(c) Notwithstanding anything to the contrary contained herein or in
the Pledge Agreement, the Pledgee shall not be required to take any action that
exposes or, in the good faith judgment of the Pledgee may expose, the Pledgee or
its officers, directors, agents or employees to personal liability, unless the
Pledgee shall be adequately indemnified as provided herein, or that is, or in
the good faith judgment of the Pledgee may be, contrary to the Pledge Agreement,
any Secured Debt Agreement or applicable law.
5. RELIANCE. The Pledgee shall be entitled to rely, and shall be
fully protected in relying, upon, any note, writing, resolution, notice,
statement, certificate, telex, teletype or telescopes message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person or entity, and, with respect to all legal matters pertaining
hereto or to the Pledge Agreement and its duties thereunder and hereunder, upon
advice of counsel selected by it.
6. INDEMNIFICATION. To the extent the Pledgee is not reimbursed and
indemnified by the Pledgors under the Pledge Agreement, the Bank Creditors will
reimburse and indemnify the Pledgee, in proportion to their respective
outstanding principal amounts of Obligations, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Pledgee in performing its duties
hereunder, or in any way relating to or arising out of its actions as Pledgee in
respect of the Pledge Agreement except for those resulting solely from the
Pledgee's own gross negligence or willful misconduct. The indemnities set forth
in this Section 6 shall survive the repayment of all Obligations, with the
respective indemnification at such time to be based upon the outstanding
principal amounts (determined as described above) of Obligations at the time of
the respective occurrence upon which the claim against the Pledgee is based or,
if same is not reasonably determinable, based upon the outstanding principal
amounts (determined as described above) of Obligations as in effect immediately
prior to the termination of the Pledge Agreement. The indemnities set forth in
this Section 6 are in addition to any indemnities provided by the Banks to the
Pledgee pursuant to the Credit Agreement.
7. THE PLEDGEE IN ITS INDIVIDUAL CAPACITY. With respect to its
obligations as a lender under the Credit Agreement and any other Loan Documents
to which the Pledgee is a party, and to act as agent under one or more of such
Loan Documents, the Pledgee shall have the rights and powers specified therein
and herein for a "Lender", or the "Administrative Agent", as the case may be,
and may exercise the same rights and powers as though it were not performing the
-3-
duties specified herein; and the terms "Banks," "Required Lenders," "holders of
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Pledgee in its individual capacity. The Pledgee and its
affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, investment banking, trust or other business with any Pledgor or
any Affiliate or Subsidiary of any Pledgor as if it were not performing the
duties specified herein or in the other Loan Documents, and may accept fees and
other consideration from the Pledgors for services in connection with the Credit
Agreement, the other Loan Documents and otherwise without having to account for
the same to the Secured Creditors.
8. HOLDERS. The Pledgee may deem and treat the payee of any note as
the owner thereof for all purposes hereof unless and until written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have been
filed with the Pledgee. Any request, authority or consent of any person or
entity who, at the time of making such request or giving such authority or
consent, is the holder of any note, shall be final and conclusive and binding on
any subsequent holder, transferee, assignee or endorsee, as the case may be, of
such note or of any note or notes issued in exchange therefor.
9. RESIGNATION BY THE PLEDGEE. (a) The Pledgee may resign from the
performance of all of its functions and duties hereunder and under the Pledge
Agreement at any time by giving 15 Business Days' prior or written notice to the
Company, the Banks and Representatives for the other Secured Creditors or, if
there is no such Representative, directly to such Secured Creditors. Such
resignation shall take effect upon the appointment of a successor Pledgee
pursuant to clause (b) or (c) below.
(b) If a successor Pledgee shall not have been appointed within said
15 Business Day period by the Required Secured Creditors, the Pledgee, with the
consent of the , which consent shall not be unreasonably withheld or delayed,
shall then appoint a successor Pledgee who shall serve as Pledgee hereunder or
thereunder until such time, if any, as the Required Secured Creditors appoint a
successor Pledgee as provided above.
(c) If no successor Pledgee has been appointed pursuant to clause (b)
above by the 20th Business Day after the date of such notice of resignation was
given by the Pledgee, as a result of a failure by the to consent to the
appointment of such a successor Pledgee, the Required Secured Creditors shall
then appoint a successor Pledgee who shall serve as Pledgee hereunder or
thereunder until such time, if any, as the Required Secured Creditors appoint a
successor Pledgee as provided above.
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EXHIBIT A-1
TO
PLEDGE AND SECURITY AGREEMENT
FORM OF
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
PLEDGE AND SECURITY SUPPLEMENT, dated as of __________ (this
"SUPPLEMENT"), made by _________, a ___________ (the "PLEDGOR"), in favor of
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Pledgee and as
collateral agent (in such capacities, the "PLEDGEE") for the Secured Creditors
(such term and each other capitalized term used but not defined having the
meaning given in the Pledge Agreement referred to below).
1. Reference is hereby made to that certain Pledge Agreement, dated
as of May 25, 2001 (as amended, supplemented or otherwise modified as of the
date hereof, the "PLEDGE AGREEMENT"), made by the Pledgors party thereto in
favor of the Pledgee for the benefit of the Secured Creditors described therein.
2. The Pledgor hereby confirms and reaffirms the security interest
in the Collateral granted to the Pledgee for the benefit of the Secured
Creditors under the Pledge Agreement, and, as additional collateral security for
the prompt and complete payment when due (whether at stated maturity, by
acceleration or otherwise) of the Obligations and in order to induce the Secured
Creditors to make loans and other extensions of credit constituting Obligations,
the Pledgor hereby delivers to the Pledgee, for the benefit of the Secured
Creditors, all of the property listed in Schedule I hereto (the "ADDITIONAL
COLLATERAL"; as used in the Pledge Agreement as supplemented by this Supplement,
"COLLATERAL" shall be deemed to include the Additional Collateral), and hereby
grants to the Pledgee, for the benefit of the Secured Creditors, a first
priority security interest in the Additional Collateral and all proceeds
thereof.
3. The Pledgor hereby represents and warrants that the
representations and warranties contained in Section 13 of the Pledge Agreement
are true and correct on the date of this Supplement with references therein to
the "Collateral" to include the Additional Collateral and with references
therein to the "Pledge Agreement" to mean the Pledge Agreement as supplemented
by this Supplement.
4. This Supplement is supplemental to the Pledge Agreement, forms a
part thereof and is subject to the terms thereof and the Pledge Agreement is
hereby supplemented as provided herein. Without limiting the foregoing,
"Collateral" subject to the Pledge Agreement shall hereby be deemed to include
each item listed on Schedule I to this Supplement.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Supplement to be duly executed and delivered on the date first set forth above.
[PLEDGOR]
By:
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Pledgee
By:
Name:
Title:
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SCHEDULE I
TO
PLEDGE AND SECURITY AGREEMENT SUPPLEMENT
ADDITIONAL COLLATERAL
EXHIBIT A-2
TO
PLEDGE AGREEMENT
SUPPLEMENT NO. _______ dated as of __________, to
the Pledge Agreement dated as of May 25, 2001 (the "PLEDGE
AGREEMENT"), among the Pledgors party thereto (immediately
before giving effect to this Supplement) and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION as
collateral agent and as pledgee (in such capacities, the
"Pledgee") for the Secured Creditors (such term and each
other capitalized term used but not defined having the
meaning given it in the Pledge Agreement referred to
below).
A. The Pledgors have entered into the Pledge Agreement in order to
induce the Secured Creditors to make loans and other extensions of credit
constituting Obligations as defined in the Pledge Agreement. Pursuant to Section
5.15 of the Credit Agreement, certain Subsidiaries of the are, after the date of
the Pledge Agreement, required to enter into the Pledge Agreement as a Pledgor.
Section 19 of the Pledge Agreement provides that additional Subsidiaries may
become Pledgors under the Pledge Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned (the "NEW PLEDGOR")
is a Subsidiary of the and is executing this Supplement in accordance with the
requirements of the Credit Agreement and/or the Pledge Agreement to become a
Pledgor under the Pledge Agreement in order to induce the Secured Creditors to
extend, or maintain, Obligations.
Accordingly, the Pledgee and the New Pledgor agree as follows:
SECTION 1. The New Pledgor by its signature below becomes a
Pledgor under the Pledge Agreement with the same force and effect as if
originally named therein as a Pledgor and the New Pledgor hereby agrees to all
the terms and provisions of the Pledge Agreement applicable to it as a Pledgor
thereunder. Each reference to a "Pledgor" in the Pledge Agreement shall be
deemed to include the New Pledgor. The Pledge Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Secured
Creditors that this Supplement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject to the effects of applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Supplement shall
become effective when the Pledgee shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Pledgor and
the Pledgee.
SECTION 4. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 5. This supplement shall be governed by, and construed in
accordance with, the Laws of the State of New York.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired.
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in the Pledge Agreement. All communications and
notices hereunder to the New Pledgor shall be given to it at the address set
forth under its signature, with a copy to the .
IN WITNESS WHEREOF, the New Pledgor and the Pledgee have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.
[NAME OF NEW PLEDGOR]
By:
Name:
Title:
Address:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Pledgee
By:
Name:
Title:
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fwca.doc
1486877
EXHIBIT K
COMMITMENT INCREASE SUPPLEMENT
------------ --, ----
Bank of America National Trust and
Savings Association, as Administrative
Agent for the Lenders party to the
Second Amended and Restated Revolving
Credit Agreement dated as of May 25,
2001 among Xxxxxx Xxxxxxx LLC (the
"COMPANY"), the Borrowing Subsidiaries
party thereto from time to time, the
Guarantors party thereto from time to
time, the Lenders party thereto from
time to time, and Bank of America
National Trust and Savings Association,
as Administrative Agent (the "CREDIT
AGREEMENT")
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
Pursuant to Section 1.04 of the Credit Agreement, the undersigned
hereby agrees to increase, as of ______________, ______, its Revolving Credit
Commitment to the amount set forth below and agrees that all of the terms and
conditions of the Credit Agreement are equally applicable to its Revolving
Credit Commitment as so increased.
IN WITNESS WHEREOF, the undersigned has executed this Supplement as
of the date first above written.
___________________________________________,
as Lender
By:________________________________________
Title:______________________________
Revolving Credit
Commitment Amount: $____________________
Address for Notices:
____________________________________________
____________________________________________
____________________________________________
Attention:__________________________________
Telephone:__________________________________
Telecopier:_________________________________
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EXHIBIT L
REQUEST FOR EXTENSION OF CREDIT
Date: ____________, _____
To: Bank of America National Trust and
Savings Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated
Revolving Credit Agreement dated as of May 25, 2001 among Xxxxxx Xxxxxxx LLC
(the "COMPANY"), the Borrowing Subsidiaries party thereto from time to time, the
Guarantors from time to time party thereto, the Lenders from time to time party
thereto and Bank of America National Trust and Savings Association, as
Administrative Agent (as extended, renewed, amended or restated from time to
time, the "AGREEMENT;" the terms defined therein being used herein as therein
defined).
The undersigned, on behalf of ___________, hereby request (select
one):
[ ] a borrowing of ___ Revolving Credit Loans or ___ Swingline Advance
[ ] a conversion or renewal of Loans
1. On _______________, ______.
2. In the amount of $_______________.
3. ____ Borrowing of Loans comprised of __________________________.
[type of interest rate
Option requested]
____ Conversion of Loans comprised of ___________ to __________.
____ Renewal of Loans comprised of _____________
4. If applicable: with Funding Period of __________ months/days.
The foregoing request complies with the requirements of Section 2.07
or 2.09, as applicable, of the Agreement. The undersigned hereby certifies that
the following statements are true on the date hereof, and will be rue on the
above date, before and after giving effect and to the application of the
proceeds therefrom:
(a) the representations and warranties of each Borrower
contained in the Agreement are true and correct in all material
respects as though made on and as of the above date (except (i) to
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the extent that such representations and warranties expressly relate
solely to an earlier date and then shall be correct as of such date
and (ii) that the representation and warranty set forth in Section
3.08 of the Agreement in the case of any Loans the proceeds of which
are used solely to repay Loans maturing on such date) before and
after giving effect to this extension of credit and to the
application of the proceeds therefrom, as though made on and as of
this date; and
(b) no Potential Default or Event of Default has occurred
and is continuing, or would result form such proposed extension of
credit.
XXXXXX XXXXXXX LLC
BY: Foreign Holdings, Ltd.,
its sole member
By:
Title:__________________________
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EXHIBIT M
FORM OF ELECTION TO PARTICIPATE
___________, 20__
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lender party to the
Credit Agreement referred to below
Dear Sirs:
Reference is made to the Second Amended and Restated Revolving Credit
Agreement, dated as of May 25, 2001 (the "CREDIT AGREEMENT") among Xxxxxx
Xxxxxxx LLC, one or more Borrowing Subsidiaries from time to time party thereto,
the Lenders named therein, Bank of America, N.A. as Administrative Agent for the
Lenders. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement.
The undersigned, [name of Borrowing Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be a Borrowing Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that (i) it is a
wholly-owned Subsidiary of the Company hereunder, (ii) it has irrevocably
appointed the Company as its agent under Section 2.19 of the Credit Agreement;
(iii) the execution, delivery and performance by it of the Credit Agreement,
this Election to Participate and the Notes which it has executed and delivered
are within its corporate powers, have been duly authorized by all necessary
corporate action, requires no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its charter
or by-laws or of any agreement or instrument to which it is a party or is
subject, or by which it, or its property, is bound, or of any judgment,
injunction, order, decree or other instrument binding upon it or result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, (iv) the Credit Agreement and the Notes constitute valid and
binding joint and several obligations of the undersigned subject to general
principles of equity and bankruptcy, reorganization, insolvency and similar laws
of general application to enforcement of creditors' rights and (v) the
representations and warranties set forth in Article III of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of a Borrowing
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation Section 10.12 thereof, as if the
undersigned were a direct signatory party thereto.
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All notices to the undersigned under the Credit Agreement should be
directed to Xxxxxx Xxxxxxx LLC at its address for notices specified pursuant to
Section 10.05 of the Credit Agreement. This instrument shall be construed in
accordance with and governed by the internal laws of the State of New York.
Very truly yours,
[NAME OF BORROWING SUBSIDIARY]
By
Name
Title_______________________________
The undersigned hereby confirms that [name of Borrowing Subsidiary]
is a Borrowing Subsidiary for purposes of the Credit Agreement described above.
XXXXXX XXXXXXX LLC
By: Foreign Holding, Ltd.,
its sole member,
By
Name
Title_______________________________
Agreed and accepted as of _____________________.
BANK OF AMERICA, N.A.,
as Administrative Agent for
the Lenders
By
Name
Title_______________________________
