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EXHIBIT 4.11
FIVE-YEAR CREDIT AGREEMENT
Dated as of July 13, 2000
XXXXXXX CHEMICAL COMPANY, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "INITIAL LENDERS") listed on the signature pages hereof, XXXXXXX XXXXX
BARNEY INC., as arranger, BANK OF AMERICA, N.A., as syndication agent, BANK ONE,
NA, as documentation agent, and CITIBANK, N.A. ("CITIBANK"), as administrative
agent (the "AGENT") for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADVANCE" means a Revolving Credit Advance or a Competitive
Bid Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"AGENT'S ACCOUNT" means the account of the Agent maintained by
the Agent at Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Account No. 00000000, Attention: Bank Loan Syndications
Department.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the Agent
as its Applicable Lending Office with respect to such Competitive Bid
Advance.
"APPLICABLE MARGIN" means as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
---------------------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurodollar Rate Advances
---------------------------------------------------------------------------------
Level 1
A/A2 or above 0.00% 0.195%
---------------------------------------------------------------------------------
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-------------------------------------------------------------
Xxxxx 0
X-/X0 0.00% 0.275%
-------------------------------------------------------------
Xxxxx 0
BBB+/Baa1 0.00% 0.375%
-------------------------------------------------------------
Xxxxx 0
BBB/Baa2 0.00% 0.450%
-------------------------------------------------------------
Xxxxx 0
XXX-/Xxx0 0.00% 0.550%
-------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.00% 0.625%
-------------------------------------------------------------
"APPLICABLE PERCENTAGE" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
-------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
-------------------------------------------------
Level 1
A/A2 or above 0.075%
-------------------------------------------------
Xxxxx 0
X-/X0 0.100%
-------------------------------------------------
Level 3
BBB+/Baa1 0.125%
-------------------------------------------------
Xxxxx 0
XXX/Xxx0 0.000%
-------------------------------------------------
Xxxxx 0
XXX-/Xxx0 0.200%
-------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.250%
-------------------------------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceed 50% of the aggregate Commitments, a
percentage per annum determined by reference to the Public Debt Rating
in effect on such date as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Xxxxx'x Utilization Fee
--------------------------------------------------
Level 1
A/A2 or above 0.050%
--------------------------------------------------
Xxxxx 0
X-/X0 0.075%
--------------------------------------------------
Level 3
BBB+/Baa1 0.125%
--------------------------------------------------
Level 4
BBB/Baa2 0.125%
--------------------------------------------------
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----------------------------------------------
Xxxxx 0
XXX-/Xxx0 0.125%
----------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.250%
----------------------------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section
2.18(d).
"ASSUMPTION AGREEMENT" has the meaning specified in Section
2.18(d)(ii).
"AUTHORIZED OFFICER" shall mean the Chairman, the General
Counsel, the Secretary, the Controller, the Treasurer and such other
persons designated by the Borrower in writing to the Agent by the
Treasurer of the Borrower and acceptable to the Agent.
"BANKRUPTCY CODE" shall mean Title 11 of the United States
Code entitled "Bankruptcy," as amended from time to time, and any
successor statute or statutes.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1%
or, if there is no nearest 1/4 of 1%, to the next higher 1/4
of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained
by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
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(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"BORROWING" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market.
"CAPITALIZED LEASE" shall mean any lease of property , real,
personal or mixed, the obligations under which are capitalized on the
consolidated balance sheet of the Borrower and its Subsidiaries in
accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations of
the Borrower and its Subsidiaries under or in respect of Capitalized
Leases.
"CHANGE IN CONTROL" shall mean a change in control of the
Borrower of a nature that would be required to be reported (assuming
such event has not been previously reported) in response to Item 1(a)
of the Current Report on Form 8-K, pursuant to Section 13 or 15(d) of
the Exchange Act; provided that, without limitation, a Change in
Control shall be deemed to have occurred at such time as (i) any
"person" within the meaning of Section 14(d) of the Exchange Act, other
than the Borrower, a Subsidiary of the Borrower, or any employee
benefit plan(s) sponsored by the Borrower or any Subsidiary of the
Borrower, is or has become the "beneficial owner," as defined in Rule
13d-3 under the Exchange Act, directly or indirectly, of 30% or more of
the combined voting power of the outstanding securities of the Borrower
ordinarily having the right to vote at the election of directors, or
(ii) individuals who constituted the Board of Directors of the Borrower
on the Effective Date (the "Incumbent Board") have ceased for any
reason to constitute at least a majority thereof; PROVIDED FURTHER that
any person becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Borrower's shareholders,
was approved by a vote of at least a majority of the directors
comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Borrower in which such person is
named as a nominee for director without objection to such nomination)
shall be, for purposes of this definition, considered as though such
person were a member of the Incumbent Board.
"COMMITMENT" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if
such Lender has entered into any Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 8.07(d), as such amount may be reduced pursuant to
Section 2.05 or increased pursuant to Section 2.18.
"COMMITMENT DATE" has the meaning specified in Section
2.18(b).
"COMMITMENT INCREASE" has the meaning specified in Section
2.18(a).
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"COMPETITIVE BID ADVANCE" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"COMPETITIVE BID REDUCTION" has the meaning specified in
Section 2.01.
"CONFIDENTIAL INFORMATION" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public other than as a result of a
breach by the Agent or any Lender of its obligations hereunder or that
is or becomes available to the Agent or such Lender from a source other
than the Borrower that is not, to the best of the Agent's or such
Lender's knowledge, acting in violation of a confidentiality agreement
with the Borrower.
"CONSENTING LENDER" has the meaning specified in Section
2.19(b).
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSOLIDATED EBT" shall mean, for any period, the total
revenues of the Borrower and its Subsidiaries for such period, after
deducting therefrom the cost of goods sold and all operating expenses
for such period, including research and development and sales, general
and administrative costs and interest expense for such period, all
determined in accordance with GAAP on a consolidated basis.
"CONSOLIDATED EBITDAR" shall mean, for any period, the
Consolidated EBT of the Borrower and its Subsidiaries for such period,
plus amounts deducted in arriving at such Consolidated EBT in respect
of nonrecurring charges, depreciation and amortization allowances and
Consolidated Interest Expense for such period.
"CONSOLIDATED GROSS RENTAL EXPENSE" shall mean, for any
period, all minimum or guaranteed rentals payable by the Borrower or
any of its Subsidiaries as lessee under any lease (other than a
Capitalized Lease), properly charged to Consolidated EBT during such
period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
the sum of the following for the Borrower and its Subsidiaries, on a
consolidated basis: (a) all interest charges (including amortization of
debt discount and expense and the imputed interest component of
Capitalized Lease Obligations properly chargeable to income during such
period in accordance with GAAP), and (b) Consolidated Gross Rental
Expense for the Borrower's most recent full fiscal year.
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"CONSOLIDATED NET TANGIBLE ASSETS" shall mean, at any
particular time, Consolidated Tangible Assets at such time after
deducting therefrom all current liabilities, except for (i) notes and
loans payable, (ii) current maturities of the principal component of
Capitalized Lease Obligations, all as set forth on the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries and computed in accordance with GAAP.
"CONSOLIDATED SUBSIDIARIES" shall mean all Subsidiaries of the
Borrower which are consolidated with the Borrower for financial
reporting purposes in accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" shall mean, at any particular
time, the aggregate amount of all assets (less applicable reserves and
other properly deductible items) after deducting therefrom all
goodwill, trade names, trademarks, patents, unamortized debt discount
and expenses (to the extent included in said aggregate amount of
assets) and other like intangibles, as set forth on the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries and computed in accordance with GAAP.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08 or 2.09.
"DEBT" shall mean, for purposes of Section 5.02(d) hereof,
notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(b).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary of the
Borrower incorporated under the laws of the United States of America or
any state thereof.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a
Lender and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approval in each case not to be unreasonably withheld or delayed;
PROVIDED, HOWEVER, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"ENVIRONMENTAL AFFILIATE" shall mean, with respect to any
Person, any other Person whose liability for any Environmental Claim
such Person has retained, assumed or otherwise become liable for
(contingently or otherwise), either contractually or by operation of
law.
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"ENVIRONMENTAL APPROVALS" shall mean any permit, license,
approval, ruling, variance, exemption or other authorization required
under applicable Environmental Laws.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person,
any notice, claim, demand or similar written communication by any other
Person alleging potential 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 (a) the presence, or release into the environment, of
any Material of Environmental Concern at any location, whether or not
owned by such Person or (b) circumstances forming the basis of any
violation, or alleged violation of any Environmental Law.
"ENVIRONMENTAL LAWS" shall mean all federal, state and foreign
laws and regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata),
including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture,
processing, distribution, use treatment, storage, disposal, transport
or handling of Materials of Environmental Concern.
"ERISA" shall mean the Employment Retirement Income Security
Act of 1974, as amended from time to time. Section references to ERISA
are to ERISA, as in effect at the date of this Agreement and any
subsequent provisions of ERISA, amendatory thereof, supplemental
thereto or substituted therefor.
"ERISA CONTROLLED GROUP" shall mean a group consisting of any
ERISA Person and all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common
control with such Person that, together with such Person, are treated
as a single employer under regulations of the PBGC.
"ERISA PERSON" shall have the meaning set forth in Section
3(9) of ERISA for the term "person."
"ERISA PLAN" shall mean (a) any Plan that (i) is not a
Multiemployer Plan and (ii) has Unfunded Benefit Liabilities in excess
of $1,000,000 and (b) any Plan that is a Multiemployer Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
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"EURODOLLAR RATE" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum) by reference to the
British Bankers' Association Interest Settlement Rates as the London
interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits
in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurodollar Rate Advance comprising part of
such Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. If the British Bankers' Association
Settlement Rates are unavailable, the Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"EURODOLLAR RATE ADVANCE" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION DATE" has the meaning specified in Section 2.19(b).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
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"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
"FIXED RATE ADVANCES" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"INCREASE DATE" has the meaning specified in Section 2.18(a).
"INCREASING LENDER" has the meaning specified in Section
2.18(b).
"INDEBTEDNESS" of any Person shall mean, without duplication,
(a) all indebtedness (including principal, interest, fees and charges)
of such Person for borrowed money or for the deferred purchase price
(or a portion thereof) of property or services (other than trade
payables incurred in the ordinary course of business of such Person),
(b) all indebtedness of such Person evidenced by a note, bond,
debenture or similar instrument, (c) the principal component of all
Capitalized Lease Obligations of such Person and all obligations of
such Person under any other lease to the extent that the then present
value of the minimum rental commitment thereunder should, in accordance
with GAAP, be capitalized on a balance sheet of the lessee, (d) the
face amount of all letters of credit issued for the account of such
Person and, without duplication, all unreimbursed amounts drawn
thereunder, (e) all indebtedness of any other Person secured by any
Lien on any property owned by such Person, whether or not such
indebtedness has been assumed, (f) payment obligations under any
interest rate protection agreements (including without limitation, any
interest rate swaps, caps, floors, collars and similar agreements) and
currency swaps and similar agreements, (g) payment obligations under
any facility for the sale or financing of receivables and (h) any
indebtedness of any other Person of the character referred to in
clauses (a) through (g) with respect to which such Person has become
liable by way of any guarantee, similar contingent obligation or other
arrangement which has the effect of assuring payment.
"INFORMATION MEMORANDUM" means the information memorandum
dated June 12, 2000 used by the Agent in connection with the
syndication of the Commitments.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, or if available
by all Lenders, nine or twelve months, as the Borrower may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; PROVIDED, HOWEVER, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
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(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Revolving Credit Borrowing or for LIBO Rate Advances
comprising part of the same Competitive Bid Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"LENDERS" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.18 or 2.19 and each
Person that shall become a party hereto pursuant to Section 8.07.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) by reference to the British Bankers'
Association Interest Settlement Rates as the London interbank offered
rate for deposits in U.S. dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period or, if for any reason
such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to the amount that
would be the Reference Banks' respective ratable shares of such
Borrowing if such Borrowing were to be a Revolving Credit Borrowing to
be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. If British
Bankers' Association Interest Settlement Rates are unavailable, the
LIBO Rate for any Interest Period for each LIBO Rate Advance comprising
part of the same Competitive Bid Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the
Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section
2.08.
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"LIBO RATE ADVANCES" means a Competitive Bid Advance bearing
interest based on the LIBO Rate.
"LIEN" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preferential payment arrangement, priority or other security
agreement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement,
any financing lease having substantially the same effect as any of the
foregoing and the filing of any financing statement of similar
instrument under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign.
"MARGIN STOCK" shall have the meaning provided such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
upon (a) the operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the ability of
the Borrower to perform, or of the Agent or any of the Lenders to
enforce, any of the Obligations.
"MATERIAL SUBSIDIARY" shall mean each Subsidiary of the
Borrower which meets any of the following conditions: (a) the Borrower
and its other Subsidiaries, investments in and advances to such
Subsidiary exceed 10% of the total assets of the Borrower and its
Subsidiaries consolidated as of the end of the most recently completed
fiscal year, (b) the Borrower's and its other Subsidiaries"
proportionate share of the total assets (after intercompany
eliminations) of such Subsidiary exceeds 10% of the total assets of the
Borrower and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year, or (c) the Borrower's and its other
Subsidiaries' equity in the income from the continuing operations
before income taxes, extraordinary items and cumulative effect of a
change in accounting principles (excluding non-recurring items and
special charges) of such Subsidiary exceeds 10% of such income of the
Borrower and its Subsidiaries consolidated for the most recently
completed fiscal year.
"MATERIALS OF ENVIRONMENTAL CONCERN" shall mean and include
chemicals, pollutants, contaminants, wastes, toxic substances,
petroleum and petroleum products regulated by applicable Environmental
Laws.
"MULTIEMPLOYER PLAN" shall mean a Plan which is a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NON-CONSENTING LENDER" has the meaning specified in Section
2.18(b).
"NOTE" means a Revolving Credit Note or a Competitive Bid
Note.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning
specified in Section 2.03(a).
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning
specified in Section 2.02(a).
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"OBLIGATIONS" shall mean all amounts owing to the Agent or any
Lender (whether a contingent obligation or otherwise) pursuant to the
terms of this Agreement or any Note.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established under ERISA, or any successor thereto.
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"PLAN" means any employee benefit plan, covered by Title IV of
ERISA, the funding requirements of which: (a) were the responsibility
of the Borrower or a member of its ERISA Controlled Group at any time
within the five years immediately preceding the date hereof, (b) are
currently the responsibility of the Borrower or a member of its ERISA
Controlled Group, or (c) hereafter become the responsibility of the
Borrower or a member of its ERISA Controlled Group, including any such
plans as may have been, or may hereafter be, terminated for whatever
reason.
"PRINCIPAL PROPERTY" shall mean any manufacturing plant or
manufacturing facility (in each case taken as a whole) which is (a)
owned by the Borrower or any Principal Subsidiary, (b) located within
the continental United States, and (c) in the opinion of the Board of
Directors of the Borrower, material to the total business conducted by
the Borrower and the Principal Subsidiaries taken as a whole.
"PRINCIPAL SUBSIDIARY" shall mean any Subsidiary of the
Borrower (a) substantially all the property of which is located within
the continental United States and (b) which owns any Principal
Property; PROVIDED that the term "Principal Subsidiary" shall not
include any such Subsidiary which is principally engaged in leasing or
in financing receivables, or which is principally engaged in financing
the Borrower's operations outside the continental United States of
America.
"PUBLIC DEBT RATING" means, as of any date, the lowest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage
and the Applicable Utilization Fee will be set in accordance with Level
6 under the definition of "Applicable Margin", "Applicable Percentage"
or "Applicable Utilization Fee", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating; (d) if any
rating established by S&P or Moody's shall be changed, such change
shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
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"REFERENCE BANKS" means Citibank, Bank of America, N.A. and
Bank One, NA.
"REGISTER" has the meaning specified in Section 8.07(d).
"REPORTABLE EVENT" shall have the meaning set forth in Section
4043(b) of ERISA (other than a Reportable Events as to which the
provision of 30 days' notice to the PBGC is waived under applicable
regulations), or is the occurrence of any of the events described in
Section 4062(e) or 4063(a) of ERISA.
"REQUIRED LENDERS" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having at least a
majority in interest of the Commitments.
"RESPONSIBLE OFFICER" means the Chief Financial Officer, the
Controller, the Treasurer or any Assistant Treasurer of the Borrower.
"RESTRICTED SUBSIDIARY" shall mean, for purposes of Section
5.02(d) hereof, a wholly-owned Subsidiary of the Borrower substantially
all of the assets of which are located in the United States (excluding
territories or possessions) and which owns a Principal Property;
provided however, that the term Restricted Subsidiary shall not include
any Subsidiary that is principally engaged in (a) the business of
financing; (b) the business of owning, buying, selling, leasing,
dealing in or developing real property; or (c) the business of
exporting goods or merchandise from or importing goods or merchandise
into the United States.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of the
Borrower payable to the order of any Lender, delivered pursuant to a
request made under Section 2.16 in substantially the form of Exhibit
A-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances made by such
Lender.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"SPC" has the meaning specified in Section 8.07(f) hereto.
"SUBSIDIARY" means, with respect to any Person, any
corporation or other entity in which such Person has ownership or
control sufficient under GAAP to require such corporation or entity to
be consolidated with such Person for financial reporting purposes.
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"TERMINATION DATE" means the earlier of (a) July 13, 2005,
subject to the extension thereof pursuant to Section 2.19 and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.19 shall be the Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of
this Agreement.
"TERMINATION EVENT" shall mean (a) a Reportable Event, or (b)
the initiation of any action by the Borrower, any member of the
Borrower's ERISA Controlled Group or any ERISA Plan fiduciary to
terminate an ERISA Plan or the treatment of an amendment to an ERISA
Plan as a termination under ERISA, or (c) the institution of
proceedings by the PBGC under Section 4042 of ERISA to terminate an
ERISA Plan or to appoint a trustee to administer any ERISA plan,
except, in any such case, where the result thereof could not reasonably
be expected to have a Material Adverse Effect.
"TYPE" means, as to any Revolving Credit Advance, its nature
as a Base Rate Advance or a Eurodollar Rate Advance.
"UNFUNDED BENEFIT LIABILITIES" means with respect to any Plan
at any time, the amount (if any) by which (a) the present value of all
benefit liabilities under such Plan as defined in Section 4001(a)(16),
of ERISA, exceeds (b) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plan (on the basis of the interest rate and
other assumptions used to determine the current liabilities of the Plan
as required under Code Section 412(1)).
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding such Lender's Commitment
PROVIDED that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount of the
Competitive Bid Advances then outstanding and such
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deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "COMPETITIVE BID REDUCTION").
Each Revolving Credit Borrowing shall be in an aggregate amount of $10,000,000
or an integral multiple of $1,000,000 in excess thereof and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Commitment, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances or (y) 1:00 P.M. (New York City
time) on the date of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower to
the Agent, which shall give to each Lender prompt notice thereof by telecopier
or telex. Each such notice of a Revolving Credit Borrowing (a "NOTICE OF
REVOLVING CREDIT BORROWING") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 3:00 P.M. (New York City time) on the date of such Revolving Credit
Borrowing make available for the account of its Applicable Lending Office to the
Agent at the Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Credit Borrowing. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Agent will make such funds available to the Borrower at the Agent's address
referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of
more than six separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Credit Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to
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the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and the Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
SECTION 2.03. THE COMPETITIVE BID ADVANCES. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; PROVIDED that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Agent, by telecopier or
telex, a notice of a Competitive Bid Borrowing (a "NOTICE OF
COMPETITIVE BID BORROWING"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 30 days after the date of such
Competitive Bid Borrowing or later than the Termination Date), (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later
than 10:00 A.M. (New York City time) (A) at least one Business Day
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "FIXED RATE ADVANCES") and (B) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances. Each Notice of Competitive
Bid Borrowing shall be irrevocable and binding on the Borrower. The
Agent shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from the Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.
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(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in
its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Borrower), (A) before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and (B) before 10:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts of such proposed Competitive
Bid may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance; PROVIDED that if the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent, by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent before 10:00 A.M. (New York City time), and such
Lender shall not be obligated to, and shall not, make any Competitive
Bid Advance as part of such Competitive Bid Borrowing; PROVIDED that
the failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 10:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and (B) before 11:00 A.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent of the amount
of each Competitive Bid Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to the Borrower by the Agent
on behalf of such Lender for such Competitive Bid Advance
pursuant to paragraph (ii) above) to be made by each Lender as
part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent notice to that effect. The Borrower
shall accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest
rates of interest offered by such Lenders. If two or more
Lenders have offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among such
Lenders in proportion to the amount that each such Lender
offered at such interest rate.
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(iv) If the Borrower notifies the Agent that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Agent shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph (ii) above have
been accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Article
III. Each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing shall, before 11:00 A.M. (New York City
time) on the date of such Competitive Bid Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the Agent
at its address referred to in Section 8.02, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to
the Borrower at the location specified by the Borrower in its Notice of
Competitive Bid Borrowing. Promptly after each Competitive Bid
Borrowing the Agent will notify each Lender of the amount of the
Competitive Bid Borrowing, the consequent Competitive Bid Reduction and
the dates upon which such Competitive Bid Reduction commenced and will
terminate.
(vi) If the Borrower notifies the Agent that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified
in the related Notice of Competitive Bid Borrowing for such Competitive
Bid Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and, following the making of each Competitive Bid Borrowing, the
Borrower shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, PROVIDED that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
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(d) The Borrower shall repay to the Agent for the account
of each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the Effective Date in the case of each
Initial Lender and from the effective date specified in the Assumption Agreement
or in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 2000, and on the Termination Date.
(b) AGENT'S FEES. The Borrower shall pay to the Agent for
its own account such fees as may from time to time be agreed between the
Borrower and the Agent.
SECTION 2.05. OPTIONAL TERMINATION OR REDUCTION OF THE
COMMITMENTS. The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, PROVIDED that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and PROVIDED FURTHER that the aggregate
amount of the Commitments of the Lenders shall not be reduced to an amount that
is less than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
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SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES. The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum equal
at all times to the sum of (x) the Base Rate in effect from time to
time PLUS (y) the Applicable Margin in effect from time to time PLUS
(z) the Applicable Utilization Fee, if any, in effect from time to
time, payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance PLUS (y) the Applicable Margin
in effect from time to time PLUS (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances
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for such Interest Period, the Agent shall forthwith so notify the Borrower and
the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert
Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
(f) If British Bankers' Association Interest Settlement
Rates are unavailable and fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate or LIBO Rate for
any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, be prepaid by the Borrower or be
automatically Converted into a Base Rate Advance (or if such Advance is
then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT
ADVANCES. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type; PROVIDED,
HOWEVER, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b) and no Conversion of any Revolving Credit Advances shall result
in more separate Revolving Credit Borrowings
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than permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES. The
Borrower may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Revolving Credit Advances comprising
part of the same Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; PROVIDED, HOWEVER, that (x) each partial prepayment shall be in
an aggregate principal amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (b) the
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obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) The Borrower
shall make each payment hereunder not later than 1:00 P.M. (New York City time)
on the day when due to the Agent at the Agent's Account in same day funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to the Lenders
for the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18
or an extension of the Termination Date pursuant to Section 2.19, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Increase Date or Extension Date, as the case may be, the Agent shall make all
payments hereunder and under any Notes issued in connection therewith in respect
of the interest assumed thereby to the Assuming Lender. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, all computations of interest based on the Eurodollar Rate, the LIBO
Rate or the Federal Funds Rate or in respect of Fixed Rate Advances and of
facility fees shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or facility fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility fee,
as the case may be; PROVIDED, HOWEVER, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
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SECTION 2.14. TAXES. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender and the
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Initial Lender and on the
date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter as requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide each of the Agent and
the Borrower with two original Internal Revenue Service forms W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such Lender
first becomes a party to
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this Agreement indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; PROVIDED,
HOWEVER, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in Section
2.14(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under subsection (e) above), such
Lender shall not be entitled to indemnification under Section 2.14(a) or (c)
with respect to Taxes imposed by the United States by reason of such failure;
PROVIDED, HOWEVER, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurocurrency Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. EVIDENCE OF DEBT. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender
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resulting from each Revolving Credit Advance owing to such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder in respect of Revolving Credit Advances. The
Borrower agrees that upon notice by any Lender to the Borrower (with a copy of
such notice to the Agent) to the effect that a Revolving Credit Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Revolving Credit Advances owing to, or to
be made by, such Lender, the Borrower shall promptly execute and deliver to such
Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to
Section 8.07(d) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) the amount of any sum received by the Agent from the Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; PROVIDED, HOWEVER, that the failure of the Agent or such Lender to make
an entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries,
including without limitation liquidity support for commercial paper and
acquisitions.
SECTION 2.18. INCREASE IN THE AGGREGATE COMMITMENTS. (a) The
Borrower may, at any time but in any event not more than once in any calendar
year prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Commitment be increased by an amount of $50,000,000 or
an integral multiple of $50,000,000 in excess thereof (each a "COMMITMENT
INCREASE") to be effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "INCREASE DATE") as specified in
the related notice to the Agent; PROVIDED, HOWEVER that (i) in no event shall
the aggregate amount of the Commitments at any time exceed $1,000,000,000 and
(ii) on the date of any request by the Borrower for a Commitment Increase and on
the related Increase Date, the applicable conditions set forth in Article III
shall be satisfied.
(b) The Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "COMMITMENT DATE"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "INCREASING LENDER") shall, in
its sole discretion, give written notice to the Agent on or prior to the
Commitment Date of the amount by which it is willing to increase its Commitment.
If the Lenders notify the Agent that they are willing to increase the amount of
their respective Commitments by an
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aggregate amount that exceeds the amount of the requested Commitment Increase,
the requested Commitment Increase shall be allocated among the Lenders willing
to participate therein in such amounts ratably.
(c) Promptly following each Commitment Date, the Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the applicable Commitment
Date; PROVIDED, HOWEVER, that the Commitment of each such Eligible Assignee
shall be in a minimum amount of $10,000,000.
(d) On each Increase Date, each Eligible Assignee that
accepts an offer to participate in a requested Commitment Increase in accordance
with Section 2.18(b) (each such Eligible Assignee and each Eligible Assignee
that agrees to an extension of the Termination Date in accordance with Section
2.19(c), an "ASSUMING LENDER") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each Increasing Lender for such
requested Commitment Increase shall be so increased by such amount (or by the
amount allocated to such Lender pursuant to the last sentence of Section
2.18(b)) as of such Increase Date; PROVIDED, HOWEVER, that the Agent shall have
received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications
to this Agreement and (B) an opinion of counsel for the Borrower (which
may be in-house counsel), in substantially the form of Exhibit D
hereto;
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the Agent
(each an "ASSUMPTION AGREEMENT"), duly executed by such Eligible
Assignee, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the
increase in the amount of its Commitment in a writing satisfactory to
the Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(d), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex,
of the occurrence of the Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and each Assuming Lender on such date.
SECTION 2.19. EXTENSION OF TERMINATION DATE. (a) At least 45
days but not more than 60 days prior to any anniversary of the Effective Date,
the Borrower, by written notice to the Agent, may request an extension of the
Termination Date in effect at such time by one year from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not earlier than 30 days but
not later than 20 days prior to such anniversary date, notify the Borrower and
the Agent in writing as to whether such Lender will consent to such extension.
If any Lender shall fail to notify the Agent and the Borrower in writing of its
consent to any such request for extension of the Termination Date at least 20
days prior to such anniversary date, such Lender shall be
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deemed to be a Non-Consenting Lender with respect to such request. The Agent
shall notify the Borrower not later than 15 days prior to such anniversary date
of the decision of the Lenders regarding the Borrower's request for an extension
of the Termination Date.
(b) If all the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.19, the Termination
Date in effect at such time shall, effective as at the applicable anniversary of
the Effective Date (the "EXTENSION DATE"), be extended for one year; provided
that on each Extension Date the applicable conditions set forth in Article III
shall be satisfied. If less than all of the Lenders consent in writing to any
such request in accordance with subsection (a) of this Section 2.19, the
Termination Date in effect at such time shall, effective as at the applicable
Extension Date and subject to subsection (d) of this Section 2.19, be extended
as to those Lenders that so consented (each a "CONSENTING LENDER") but shall not
be extended as to any other Lender (each a "NON-CONSENTING LENDER"). To the
extent that the Termination Date is not extended as to any Lender pursuant to
this Section 2.19 and the Commitment of such Lender is not assumed in accordance
with subsection (c) of this Section 2.19 on or prior to the applicable Extension
Date, the Commitment of such Non-Consenting Lender shall automatically terminate
in whole on such unextended Termination Date without any further notice or other
action by the Borrower, such Lender or any other Person; PROVIDED that such
Non-Consenting Lender's rights under Sections 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, shall survive the Termination Date for such
Lender as to matters occurring prior to such date. It is understood and agreed
that no Lender shall have any obligation whatsoever to agree to any request made
by the Borrower for any requested extension of the Termination Date.
(c) If less than all of the Lenders consent to any such
request pursuant to subsection (a) of this Section 2.19, the Agent shall
promptly so notify the Consenting Lenders, and each Consenting Lender may, in
its sole discretion, give written notice to the Agent not later than 10 days
prior to the Extension Date of the amount of the Non-Consenting Lenders'
Commitments for which it is willing to accept an assignment. If the Consenting
Lenders notify the Agent that they are willing to accept assignments of
Commitments in an aggregate amount that exceeds the amount of the Commitments of
the Non-Consenting Lenders, such Commitments shall be allocated among the
Consenting Lenders willing to accept such assignments in such amounts as are
agreed between the Borrower and the Agent. If after giving effect to the
assignments of Commitments described above there remains any Commitments of
Non-Consenting Lenders, the Borrower may arrange for one or more Consenting
Lenders or other Eligible Assignees as Assuming Lenders to assume, effective as
of such anniversary date, any Non-Consenting Lender's Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; PROVIDED, HOWEVER, that the amount of the Commitment of any such
Assuming Lender as a result of such substitution shall in no event be less than
$25,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $25,000,000, in which case such Assuming Lender shall assume all of
such lesser amount; and PROVIDED FURTHER that:
(i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender (A) the aggregate principal
amount of, and any interest accrued and unpaid to the effective date of
the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees
owing to such Non-Consenting Lender as of the effective date of such
assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
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(iii) with respect to any such Assuming Lender, the
applicable processing and recordation fee required under Section
8.07(a) for such assignment shall have been paid;
PROVIDED FURTHER that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 8.04, and its obligations under Section 7.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Agent an Assumption
Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender,
the Borrower and the Agent, (B) any such Consenting Lender shall have delivered
confirmation in writing satisfactory to the Borrower and the Agent as to the
increase in the amount of its Commitment and (C) each Non-Consenting Lender
being replaced pursuant to this Section 2.19 shall have delivered to the Agent
any Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or
assumptions pursuant to subsection (c) of this Section 2.19) Lenders having
Commitments equal to at least 50% of the Commitments in effect immediately prior
to the Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than
one Business Day prior to such Extension Date, the Agent shall so notify the
Borrower, and, subject to the satisfaction to the applicable conditions in
Article III, the Termination Date then in effect shall be extended for the
additional one-year period as described in subsection (a) of this Section 2.19,
and all references in this Agreement, and in the Notes, if any, to the
"TERMINATION DATE" shall, with respect to each Consenting Lender and each
Assuming Lender for such Extension Date, refer to the Termination Date as so
extended. Promptly following each Extension Date, the Agent shall notify the
Lenders (including, without limitation, each Assuming Lender) of the extension
of the scheduled Termination Date in effect immediately prior thereto and shall
thereupon record in the Register the relevant information with respect to each
such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "EFFECTIVE DATE") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no material adverse change
in the operations or condition (financial or otherwise) of the Borrower
and its Subsidiaries, taken as a whole, since December 31, 1999.
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(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect other than the matters described on Schedule
4.01(d) hereto (the "DISCLOSED LITIGATION") or (ii) purports to affect
the legality, validity or enforceability of this Agreement or any Note
or the consummation of the transactions contemplated hereby, and there
shall have been no material adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the
Lenders during the course of their due diligence investigation to lead
them to believe that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect; without
limiting the generality of the foregoing, the Lenders shall have been
given such access to the management, records, books of account,
contracts and properties of the Borrower and its Subsidiaries as they
shall have requested.
(d) All governmental and third party consents and
approvals necessary in connection with the transactions contemplated
hereby shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lenders) and shall remain in
effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated hereby.
(e) The Borrower shall have notified the Agent in writing
as to the proposed Effective Date.
(f) The Borrower shall have paid all reasonable accrued
fees and expenses of the Agent and the Lenders (including the
reasonable accrued fees and expenses of counsel to the Agent).
(g) On the Effective Date, the following statements shall
be true and the Agent shall have received for the account of each
Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Effective Date,
and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
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(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this Agreement
and the Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to
sign this Agreement and the Notes and the other documents to
be delivered hereunder.
(iv) A favorable opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, counsel for the Borrower, substantially in the form of
Exhibit D hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(i) The Borrower shall have terminated the commitments,
and paid in full all Debt, interest, fees and other amounts
outstanding, under the Credit Agreement dated as of December 19, 1995
among the Borrower, the lenders parties thereto and The Chase Manhattan
Bank (National Association), as agent. Each of the Lenders that is a
party to such Credit Agreement hereby waives, upon execution of this
Agreement, the three Business Day's notice required by Section 4.4 of
such Credit Agreement relating to the termination of commitments
thereunder.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING, INCREASE DATE AND EXTENSION DATE. The obligation of each Lender to
make a Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing, each Commitment Increase and each extension of Commitments pursuant
to Section 2.19 shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Revolving Credit Borrowing, the
applicable Increase Date or the applicable Extension Date (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Revolving Credit Borrowing, request for Commitment Increase, request for
Commitment Extension and the acceptance by the Borrower of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing, such Increase Date or such
Extension Date such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except, in the case of Revolving Credit Borrowings, the
representations set forth in subsections (d) and (f) thereof) are
correct on and as of such date, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, such Increase Date or such Extension Date, as though made on
and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or to the application of
the proceeds therefrom, such Increase Date or such Extension Date, that
constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
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SECTION 3.03. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower of the proceeds of such Competitive Bid Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 (except the representations set forth in subsections (d)
and (f) thereof) are correct on and as of the date of such Competitive
Bid Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Borrower, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto. The Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. The Borrower represents and warrants as follows:
(a) CORPORATE STATUS. The Borrower and each Domestic
Subsidiary (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
corporate power and authority to own its property and assets and to transact the
business in which it is engaged or presently proposes to engage and (iii) has
duly qualified and is authorized to do business and is in good standing as a
foreign corporation in every jurisdiction (other than the jurisdiction of its
incorporation) in which it owns or leases real property or in which the nature
of its business requires it to be so qualified, except where the failure to so
qualify, individually or in the aggregate, may not reasonably be expected to
have a Material Adverse Effect. Schedule 4.01(a) identifies all of the
Borrower's Material Subsidiaries, Domestic Subsidiaries and Principal
Subsidiaries as of the Effective Date and the principal type of business of each
such Subsidiary.
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(b) CORPORATE POWER AND AUTHORITY. The Borrower has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and the Notes and has taken all necessary corporate
action to authorize the execution, delivery and performance by the Borrower of
such Agreement and Notes. The Borrower has duly executed and delivered this
Agreement, and this Agreement and each Note constitutes, its legal, valid and
binding obligation, enforceable in accordance with its terms, except as
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law).
(c) NO VIOLATION. Neither the execution, delivery or
performance by the Borrower of this Agreement and the Notes, nor compliance by
it with the terms and provisions thereof nor the consummation of the financing
transactions contemplated thereby, (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, agreement or other instrument
to which the Borrower or any of its Subsidiaries is a party or by which it or
any of its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the Certificate of Incorporation or By-Laws of the
Borrower.
(d) LITIGATION. Except as set forth in Schedule 4.01(d),
there are no actions, suits or proceedings, or any governmental investigation or
any arbitration, in each case pending or, to the knowledge of the Borrower,
threatened which, individually or in the aggregate, may reasonably be expected
to result in a Material Adverse Effect and no material adverse change has
occurred with respect to any of the matters set forth in Schedule 4.01(d).
(e) FINANCIAL STATEMENTS; FINANCIAL CONDITION; ETC. The
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries as at December 31, 1999, and the unaudited quarterly consolidated
financial statements of the Borrower and its Consolidated Subsidiaries as at
March 31, 2000, heretofore delivered to the Lenders were prepared in accordance
with GAAP consistently applied and fairly present the consolidated financial
condition and the results of operations of the entities covered thereby on the
dates and for the periods covered thereby, except as disclosed in the notes
thereto and, with respect to interim financial statements, subject to normally
recurring year-end adjustments.
(f) MATERIAL ADVERSE CHANGE. Since December 31, 1999,
there has not occurred and there does not exist any event, act, condition or
liability which has had, or may reasonably be expected to have, a Material
Adverse Effect.
(g) USE OF PROCEEDS; MARGIN REGULATIONS. All proceeds of
each Advance will be used by the Borrower only in accordance with the provisions
of Section 2.17. Neither the making of any Advance nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulations U or
X.
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(h) GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required for the due execution, delivery and performance
of this Agreement or the Notes or the consummation of any of the transactions
contemplated thereby.
(i) TAX RETURNS AND PAYMENTS. The Borrower and each of
its Subsidiaries has filed all tax returns required to be filed by it and has
paid all taxes shown on such returns and assessments payable by it which have
become due, other than those not yet delinquent or those that are in the
aggregate adequately reserved against in accordance with GAAP which are being
diligently contested in good faith by appropriate proceedings. Except as set
forth in Schedule 4.01(i), there are and will be no tax-sharing or similar
arrangements between the Borrower and any of its Subsidiaries.
(j) ERISA. The Borrower and each member of the ERISA
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code with respect to each Plan. No such Person has (A) sought a waiver of
the minimum funding standard under Section 412 of the Code in respect of any
Plan, (B) failed to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan, which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Code that is (1) in excess of $5,000,000 and (2) not
discharged within 30 days of such failure to pay, or (C) incurred any liability,
where the liability would result in a Material Adverse Effect, under Title IV of
ERISA (other than a liability to the PBGC for premiums under Section 4007 or
ERISA).
(k) INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended, (ii) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (iii)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
(l) TRUE AND COMPLETE DISCLOSURE. All factual information
(taken as a whole) furnished by or on behalf of the Borrower by a Responsible
Officer in writing to the Agent or any Lender on or prior to the Effective Date,
for purposes of or in connection with this Agreement or any of the transactions
contemplated hereby is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Borrower by a Responsible
Officer in writing to the Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or furnished
and not incomplete by knowingly omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time. As of the
Effective Date, there are no facts, events, conditions or liabilities known to
the Borrower which, individually or in the aggregate, have or may reasonably be
expected to have a Material Adverse Effect.
(m) ENVIRONMENTAL MATTERS. (i) Except as set forth in
Schedule 4.01(m), (A) each of the Borrower, each of its Affiliates and, to the
best of the Borrower's actual knowledge, each of its other Environmental
Affiliates are in compliance with all applicable Environmental Laws except where
noncompliance, individually or in the aggregate, may not reasonably be expected
to have a Material Adverse Effect, (B) each of the Borrower, each of its
Affiliates, and, to the best of the Borrower's actual knowledge, each of its
other Environmental Affiliates has all Environmental Approvals required to
operate
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its business as presently conducted or as reasonably anticipated to be conducted
except where the failure to obtain any such Environmental Approval, individually
or in the aggregate, may not reasonably be expected to have a Material Adverse
Effect, (C) neither the Borrower, any of its Affiliates, nor, to the best of the
Borrower's actual knowledge, any of its other Environmental Affiliates has
received any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the Borrower, such
Affiliate or such Environmental Affiliate is not in full compliance with all
Environmental Laws and where such noncompliance, individually or in the
aggregate, may reasonably be expected to have a Material Adverse Effect, and (D)
to the best of the Borrower's actual knowledge, there are no circumstances that
may prevent or interfere with such full compliance in the future except where
such noncompliance, individually or in the aggregate, may not reasonably be
expected to have a Material Adverse Effect.
(ii) Except as set forth in Schedule 4.01(d),
there is no Environmental Claim pending or threatened against the
Borrower, any of its Affiliates or, to the best of the Borrower's
actual knowledge, its other Environmental Affiliates, which,
individually or in the aggregate, may reasonably be expected to have a
Material Adverse Effect.
(iii) Except as set forth in Schedule 4.01(m),
there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge or disposal of any Material of
Environmental Concern, that could form the basis of any Environmental
Claims against the Borrower, any of its Affiliates or, to the best of
the Borrower's actual knowledge, any of its other Environmental
Affiliates, which Environmental Claims, individually or in the
aggregate, may reasonably be expected to have a Material Adverse
Effect.
(iv) Without in any way limiting the generality
of the foregoing, except as disclosed in Schedule 4.01(m), (A) there
are no on-site or off-site locations in which the Borrower, any of its
Affiliates or, to the best of the Borrower's actual knowledge, any of
its other Environmental Affiliates has stored, disposed or arranged for
the disposal of Materials of Environmental Concern, (B) there are no
underground storage tanks located on property owned or leased by the
Borrower, any of its Affiliates or, to the best of the Borrower's
actual knowledge, any of its other Environmental Affiliates, (C) there
is no asbestos contained in or forming part of any building, building
component, structure or office space owned or leased by the Borrower,
any of its Affiliates or, to the best of the Borrower's actual
knowledge, any of its other Environmental Affiliates, and (D) no
polychlorinated biphenyls (PCBs) are used or stored at any property
owned or leased by the Borrower, any of its Affiliates or, to the best
of the Borrower's actual knowledge, any of its other Environmental
Affiliates, in each case the consequences of which may reasonably be
expected to have a Material Adverse Effect.
(v) For purposes of this Section 4.01(m),
"actual" knowledge shall mean knowledge of a Responsible Officer.
(n) OWNERSHIP OF PROPERTY. The Borrower and each of its
Subsidiaries has good and marketable fee simple title to or valid leasehold
interests in all of the real property owned or leased by the Borrower or such
Subsidiary and good title to all of their personal property, except where the
failure to hold such title or leasehold interests, individually or in the
aggregate, may not reasonably be expected to have a Material Adverse Effect. The
personal and real property owned by the Borrower and its Subsidiaries is not
subject to any Lien of any kind except Liens permitted hereby. The Borrower and
its Subsidiaries enjoy peaceful and undisturbed possession under all of their
respective leases except where the failure to
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enjoy such peaceful and undisturbed possession, individually or in the
aggregate, may not reasonably be expected to have a Material Adverse Effect.
(o) NO DEFAULT. The Borrower is not in default under or
with respect to any agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound in any respect which may
reasonably be expected to result in a Material Adverse Effect. No Default
exists.
(p) LICENSES, ETC. The Borrower and each of its
Subsidiaries have obtained and hold in full force and effect, all franchises,
licenses, permits, certificates, authorizations, qualifications, accreditations,
easements, rights of way and other rights, consents and approvals which are
necessary for the operation of their respective businesses as presently
conducted, except where the failure to obtain and hold the same, individually or
in the aggregate, may not reasonably be expected to have a Material Adverse
Effect.
(q) COMPLIANCE WITH LAW. The Borrower and each of its
Subsidiaries is in compliance with all laws, rules, regulations, orders,
judgments, writs and decrees except where such non-compliance, individually or
in the aggregate, may not reasonably be expected to have a Material Adverse
Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) INFORMATION COVENANTS. The Borrower shall furnish to
each Lender:
(i) QUARTERLY FINANCIAL STATEMENTS. Within 60
days after the close of each quarterly accounting period in each fiscal
year of the Borrower (other than the final quarter), the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of
such quarterly period and the related consolidated statements of
income, cash flow and retained earnings for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of
such quarterly period, and in each case setting forth comparative
figures for the related periods in the prior fiscal year.
(ii) ANNUAL FINANCIAL STATEMENTS. Within 120 days
after the close of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year and the related consolidated statements of income,
cash flow and retained earnings for such fiscal year, setting forth
comparative figures for the preceding fiscal year and, with respect to
such consolidated financial statements, certified without qualification
by independent certified public accountants of recognized national
standing selected by the Borrower, in each case together with a report
of such accounting firm stating that in the course of its regular audit
of the consolidated financial statements of the Borrower, which audit
was conducted in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge of any Default, or if in
the opinion of such accounting firm such a Default has occurred and is
continuing, a statement as to the nature thereof.
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(iii) OFFICER'S CERTIFICATE. At the time of the
delivery of the financial statements under clauses (i) and (ii) above,
a certificate of the chief financial officer or treasurer of the
Borrower which certifies (A) that such financial statements fairly
present the financial condition and the results of operations of the
Borrower and its Subsidiaries on the dates and for the periods
indicated, subject, in the case of interim financial statements, to
normally recurring year-end adjustments and (B) that such officer has
reviewed the terms of this Agreement and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the
business and condition of the Borrower and its Subsidiaries during the
accounting period covered by such financial statements, and that as a
result of such review such officer has concluded that no Default has
occurred during the period commencing at the beginning of the
accounting period covered by the financial statements accompanied by
such certificate and ending on the date of such certificate or, if any
Default has occurred, specifying the nature and extent thereof and, if
continuing, the action the Borrower proposes to take in respect
thereof. Such certificate shall be substantially in the form of Exhibit
E; PROVIDED, notwithstanding any other provision contained herein, for
purposes of such certificate and Section 5.03, Consolidated Gross
Rental Expense for any four consecutive fiscal quarters other than any
four consecutive fiscal quarters comprising a fiscal year shall be
Consolidated Gross Rental Expense for the immediately preceding fiscal
year.
(iv) NOTICE OF DEFAULT. Promptly after the
Borrower obtains knowledge of the occurrence of any Default, a
certificate of the chief financial officer or treasurer of the Borrower
specifying the nature thereof and the Borrower's proposed response
thereto.
(v) LITIGATION. Promptly after (i) the
occurrence thereof, notice to the institution of or any development in
any action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against the Borrower, any of
its Subsidiaries or any material property of any thereof which,
individually or in the aggregate, may reasonably be expected to have a
Material Adverse Effect, or (ii) actual knowledge thereof, notice of
the threat of any such action, suit, proceeding, investigation or
arbitration.
(vi) ERISA. (A) As soon as possible and in any
event within 10 days after the Borrower or any member of its ERISA
Controlled Group knows, or has reason to know, that: (1) any
Termination Event with respect to a Plan has occurred or will occur, or
(2) any condition exists with respect to a Plan which presents a
material risk of termination of the Plan or imposition of an excise tax
or other liability on the Borrower or any member of its ERISA
Controlled Group which might have a Material Adverse Effect on the
Borrower, or (3) the Borrower or any member of its ERISA Controlled
Group has applied for a waiver of the minimum funding standard under
Section 412 of the Code or Section 302 of ERISA, or (4) the Borrower or
any member of its ERISA Controlled Group has engaged in a "prohibited
transaction", as defined in Section 4975 of the Code or as described in
Section 406 of ERISA, that is not exempt under Section 4975 of the Code
and Section 408 of ERISA, or (5) any condition exists with respect to a
Multiemployer Plan which presents a material risk of a partial or
complete withdrawal (as described in Section 4203 or 4205 of ERISA) by
the Borrower or any member of its ERISA Controlled Group from a
Multiemployer Plan whereupon potential liability exceeds $25,000,000,
or (6) the Borrower or any member of its ERISA Controlled Group is in
"default" (as defined in Section 4219(c)(5) of ERISA) with respect to
payments to a Multiemployer Plan, or (7) a Multiemployer Plan is in
"reorganization" (as defined in Section 418 of the Code or Section 4241
of ERISA) or is "insolvent" (as defined in Section 4245 of ERISA), or
(8) the potential withdrawal liability (as determined in accordance
with Title IV of ERISA) of the Borrower and the members of its ERISA
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Controlled Group with respect to all Multiemployer Plans has increased
to an amount in excess of $50,000,000 or (9) there is an action brought
against the Borrower or any member of its ERISA Controlled Group under
Section 502 of ERISA with respect to its failure to comply with Section
515 of ERISA, a certificate of the chief financial officer or treasurer
of the Borrower setting forth the details of each of the events
described in clauses (1) through (9) above as applicable and the action
which the Borrower or the applicable member of its ERISA Controlled
Group proposes to take with respect thereto, together with a copy of
any notice or filing from the PBGC or which may be required by the PBGC
or other agency of the United States government with respect to each of
the events described in clauses (1) through (9) above, as applicable.
(B) As soon as possible and in any event within
five Business Days after the receipt by the Borrower or any
member of its ERISA Controlled Group of a demand letter from
the PBGC notifying the Borrower or such member of its ERISA
Controlled Group of its final decision finding liability and
the date by which such liability must be paid, a copy of such
letter, together with a certificate of the chief financial
officer or treasurer of the Borrower setting forth the action
which the Borrower or such member of its ERISA Controlled
Group proposes to take with respect thereto.
(vii) SEC FILINGS. Promptly upon the filing
thereof, copies of all regular and periodic financial information,
proxy materials and other information and reports, if any, which the
Borrower shall file with the Securities and Exchange Commission (or any
successor thereto) or any governmental agencies substituted therefore
or promptly upon the mailing thereof, copies of such documents,
material, information and reports which the Borrower shall send to or
generally make available to its stockholders.
(viii) ENVIRONMENTAL. Unless prohibited by any
applicable law, rule, regulation, order, writ, injunction or decree of,
or agreement with, any court or governmental instrumentality, or in the
case of an Environmental Affiliate which is not otherwise an Affiliate
of the Borrower, any contractual undertaking the primary purpose of
which was other than to prohibit the disclosure of such information,
promptly and in any event within ten Business Days after the existence
of any of the following conditions, a certificate of an Authorized
Officer of the Borrower specifying in detail the nature of such
condition and the Borrower's, Affiliate's or Environmental Affiliate's
proposed response thereto: (A) the receipt by the Borrower, any of its
Affiliates, or, to the best of its actual knowledge, any of its other
Environmental Affiliates of any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that such Person is not in compliance with applicable
Environmental Laws and such noncompliance, individually or in the
aggregate, may reasonably be expected to have a Material Adverse
Effect, (B) the Borrower, any of its Affiliates, or to the best of its
actual knowledge, any of its other Environmental Affiliates shall
obtain knowledge that there exists any Environmental Claim pending or
threatened against such Person, which, individually or in the
aggregate, may reasonably be expected to have a Material Adverse
Effect, or (C) any release, emission, discharge or disposal of any
Material of Environmental Concern that could form the basis of any
Environmental Claim against the Borrower, any of its Affiliates or any
of its other Environmental Affiliates, which Environmental Claim,
individually or in the aggregate, may reasonably be expected to have a
Material Adverse Effect. For purposes of this clause (viii), "actual"
knowledge shall have the meaning provided by Section 4.01(m)(v).
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(ix) OTHER INFORMATION. From time to time with
reasonable promptness, such other information or documents (financial
or otherwise) as the Agent or any Lender through the Agent may
reasonably request.
(b) BOOKS, RECORDS AND INSPECTIONS. The Borrower shall,
and shall cause each of its Domestic Subsidiaries to, keep proper books of
record and account in which full, true and correct entries in conformity with
GAAP and all requirements of law shall be made of all dealings and transactions
in relation to its business and activities. The Borrower shall, and shall cause
each of its Subsidiaries to, permit officers and designated representatives of
any Lender to visit and inspect any of the properties of the Borrower or any of
its Subsidiaries, and to examine the books of record and account of the Borrower
or any of its Subsidiaries, and discuss the affairs, finances and accounts of
the Borrower or any of its Subsidiaries with, and be advised as to the same by,
its and their officers and independent accountants, all upon reasonable notice,
at such reasonable times and to such reasonable extent as such Lender may
desire, PROVIDED any information obtained as the result of such inspection,
examination or discussion shall be deemed to constitute Confidential
Information.
(c) MAINTENANCE OF INSURANCE. On and after the Effective
Date until the Termination Date, the Borrower shall, and shall cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies or through self-insurance programs consistent with past practices,
which past practices have been disclosed in writing to the Agent prior to the
Effective Date, insurance on itself and its properties in at least such amounts
(in such types and with such deductibles) and against at least such risks as are
customarily insured against in the same general area by companies engaged in the
same or a similar business similarly situated.
(d) TAXES. (i) The Borrower shall pay or cause to be paid
or discharged, and shall cause each of its Subsidiaries to pay or cause to be
paid or discharged, when due, all taxes, charges and assessments and all other
lawful claims required to be paid by the Borrower or such Subsidiaries, except
as contested in good faith and by appropriate proceedings diligently conducted,
if adequate reserves have been established with respect thereto in accordance
with GAAP.
(ii) Except as set forth in Schedule 5.01(d), the
Borrower shall not, and shall not permit any of its Subsidiaries to,
file or consent to the filing of any consolidated tax return with any
Person (other than the Borrower and its Subsidiaries).
(e) CORPORATE FRANCHISES. The Borrower shall, and shall
cause each of its Subsidiaries to, do or cause to be done, all things necessary
to preserve and keep in full force and effect its existence and its patents,
trademarks, servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals, except where the failure to so
preserve any of the foregoing (other than existence) may not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
(f) COMPLIANCE WITH LAW. The Borrower shall, and shall
cause each of its Subsidiaries to, comply with all applicable laws, rules,
statutes, regulations, decrees and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of their business and the ownership of their property, including,
without limitation, ERISA and all Environmental Laws, other than those the
non-compliance with which, individually or in the aggregate, may not reasonably
be expected to have a Material Adverse Effect.
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(g) MAINTENANCE OF PROPERTIES. The Borrower shall, and
shall cause each of its Subsidiaries to, ensure that its material properties
used or useful in its business are kept in good repair, working order and
condition, normal wear and tear excepted.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) Liens. The Borrower shall not, and shall not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist, directly
or indirectly, any Lien on any of its or their property (whether real or
personal, including, without limitation, accounts receivable and inventory) or
any interest it or they may have therein, whether owned at the date hereof or
hereafter acquired (unless, in the case of any Lien of or upon the property of
any of its Subsidiaries, all obligations and indebtedness thereby secured are
held by the Borrower or any of its Subsidiaries); PROVIDED that the provisions
of this Section 5.02(a) shall not prevent or restrict the existence or creation
of:
(i) liens for taxes or assessments or
governmental charges or levies not then due and delinquent or
the validity of which is being contested in good faith; and
materialmen's, mechanic's, carrier's, workmen's, repairmen's,
landlord's or other like liens, or deposits to obtain the
release of such liens;
(ii) pledges or deposits to secure public or
statutory obligations or to secure payment of workmen's
compensation or to secure performance in connection with
tenders, leases of real property, or bids of contracts and
pledges or deposits made in the ordinary course of business
for similar purposes;
(iii) licenses, easements, rights of way and other
similar encumbrances, or zoning or other restrictions as to
the use of real properties, the existence of which does not in
the aggregate interfere with the operation of the business of
the Borrower or any Subsidiary thereof;
(iv) Liens of or upon any property or assets
owned by any Subsidiary of the Borrower existing on the date
on which such Subsidiary first became a Subsidiary, if such
date is subsequent to the date hereof;
(v) Liens of or upon (A) any property or assets
acquired by the Borrower or any of its Subsidiaries (whether
by purchase, merger or otherwise) after the date hereof and
not theretofore owned by the Borrower or any of its
Subsidiaries), or (B) improvements made on any property or
assets now owned or hereafter acquired, securing the purchase
price thereof or created or incurred simultaneously with, or
within 180 days after, such acquisition or the making of such
improvements or existing at the time of such acquisition
(whether or not assumed) or the making of such improvements,
if (x) such Lien shall be limited to the property or assets so
acquired or the improvements so made, (y) the amount of the
obligations or indebtedness secured by such Liens shall not be
increased after the date of the acquisition of such property
or assets or the making of such improvements, except to the
extent improvements are made to such property or assets after
the date of the acquisition or the making of the initial
improvements, and (z) in each instance where the obligation or
indebtedness secured by such Lien constitutes an obligation or
indebtedness of, or is assumed by, the Borrower or any of its
Subsidiaries, the principal amount of the obligation or
indebtedness secured by such Lien shall not
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exceed 100% of the cost or fair value (which may be determined
in good faith by the Board of Directors of the Borrower),
whichever is lower, of the property or assets or improvements
at the time of the acquisition or making thereof;
(vi) Liens arising under leases described on
Schedule 5.02(a) hereof and Capitalized Leases;
(vii) mortgages securing indebtedness of a
Subsidiary of the Borrower owing to the Borrower or to another
Subsidiary of the Borrower;
(viii) Liens on property of a corporation existing
at the time such corporation is merged into or consolidated
with the Borrower or any of its Subsidiaries or at the time of
a sale, lease or other disposition of the properties of a
corporation as an entirety or substantially as an entirety to
the Borrower or any of its Subsidiaries;
(ix) Liens on or other conveyances of property
owned by the Borrower or any of its Subsidiaries 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 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 or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of construction of the
property subject to such mortgages;
(x) Liens on accounts receivable sold to Xxxxxxx
Chemical Financial Corporation, a Delaware corporation and a
wholly owned (directly or indirectly) special purpose entity
of the Borrower, arising under the Borrower's securitization
program existing on the date hereof;
(xi) renewals, extensions or replacements of the
Liens referred to in clauses (iv) through (ix) for amounts
which shall not exceed the principal amount of the obligations
or indebtedness so renewed or replaced at the time of the
renewal or replacement thereof and applying only to the same
property or assets theretofore subject to such Liens; and
(xii) Liens (including Liens to secure judgments
pending appeal) not otherwise permitted by this Section
5.02(a) securing obligations of the Borrower or any Subsidiary
thereof in an aggregate principal amount outstanding at any
one time not to exceed an amount equal to 15% of Consolidated
Net Tangible Assets at such time.
(b) RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower
shall not, and shall not permit any of its Subsidiaries to, enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or any substantial part of the business or property of the Borrower, or, in
the case of a Subsidiary of the Borrower, the business or property of the
Borrower and its Subsidiaries taken as a whole, whether now or hereafter
acquired; PROVIDED that any disposition of less than 15% of Consolidated Net
Tangible Assets shall not be deemed to be a substantial part and PROVIDED
FURTHER that any such merger or consolidation shall be permitted if (i) the
Borrower shall be the continuing corporation (in the case of a merger or
consolidation), or the successor, if other than the Borrower, shall be a
corporation organized and existing under the laws of the United States of
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America or any State thereof and such corporation shall expressly assume to the
satisfaction of the Agent the due and punctual performance and observance of all
of the covenants and obligations contained in this Agreement and the Notes to be
performed by the Borrower, (ii) immediately after giving effect to such merger
or consolidation, no Default shall have occurred and be continuing, and (iii) on
the effective date of any such merger or consolidation occurring on or after the
Effective Date, the covenant contained in Section 5.03, calculated on a pro
forma basis with respect to the twelve month period ending on such date, after
giving effect to such merger or consolidation with respect to the Borrower or
other obligor for the Advances and other obligations hereunder, shall be
satisfied; and PROVIDED FURTHER that any wholly-owned Subsidiary of the Borrower
may merge into or convey, sell, lease or transfer all or substantially all of
its assets to, the Borrower or any other wholly owned Subsidiary of the
Borrower. Pro forma compliance with Section 5.03 shall be determined in a manner
which includes appropriate adjustments to Consolidated Interest Expense,
Consolidated EBT, Consolidated Gross Rental Expense, and Consolidated EBITDAR,
including, without limitation, adjustments designed to reflect indebtedness
incurred in connection with or in contemplation of such merger or consolidation
and interest expense for the twelve month period ending on the date of such
determination in respect thereof, and shall be demonstrated to the reasonable
satisfaction of the Agent.
(c) SALES AND LEASEBACKS. The Borrower shall not, nor
shall it permit any Principal Subsidiary to, enter into any arrangement with any
Person that provides for the leasing to the Borrower or any Principal Subsidiary
of any Principal Property, which Principal Property has been or is to be sold or
transferred by the Borrower or such Principal Subsidiary to such Person, unless
the Borrower or such Principal Subsidiary would be entitled, pursuant to Section
5.02(a), to create, incur, assume or suffer to exist any Lien upon such property
securing Indebtedness; PROVIDED that the aggregate fair market value of all
properties subject to such arrangements shall not exceed at any time 10% of the
Consolidated Net Tangible Assets and PROVIDED FURTHER that from and after the
date on which such arrangement becomes effective the same shall be deemed for
all purposes under Section 5.02(a) to be Indebtedness secured by a Lien.
(d) LIMITATIONS ON RESTRICTED SUBSIDIARY DEBT. The
Borrower shall not permit any Restricted Subsidiary to incur or assume any Debt
except:
(i) Debt that is or could be secured by a Lien
permitted pursuant to Section 5.02(a);
(ii) Debt outstanding on the Effective Date;
(iii) Debt issued to and held by the Borrower or
another Restricted Subsidiary;
(iv) Debt incurred by a Person prior to the time
(A) such Person became a Restricted Subsidiary, (B) such
Person merges into or consolidates with a Restricted
Subsidiary or (C) another Restricted Subsidiary merges into or
consolidates with such Person (in a transaction in which such
Person becomes a Restricted Subsidiary), which Debt was not
incurred in anticipation of such transaction and was
outstanding prior to such transaction;
(v) Debt incurred in the ordinary course of
business and maturing within one year; and
(vi) extensions, renewals or replacements of any
of the foregoing;
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PROVIDED, HOWEVER, that the Borrower may permit a Restricted Subsidiary
to incur Debt as permitted by clauses (ii) through (vi) of this Section
5.02(d) only to the extent that the aggregate amount of such Debt of
all Restricted Subsidiaries does not exceed 15% of Consolidated Net
Tangible Assets.
SECTION 5.03. FINANCIAL COVENANT. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not permit the ratio of Consolidated EBITDAR to Consolidated
Interest Expense for any four consecutive fiscal quarters of the Borrower (taken
as one accounting period) to be less than 2.5:1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) FAILURE TO MAKE PAYMENTS. The Borrower shall (i)
default in the payment when due of any principal of the Advances, and such
default shall continue unremedied for one or more Business Days or (ii) default,
and such default shall continue unremedied for ten or more days, in the payment
when due of any interest on the Advances or (iii) default, and such default
shall continue unremedied for 30 or more days from the date of notice of such
default, in the payment when due of any fees or any other amounts owing
hereunder.
(b) BREACH OF REPRESENTATION OR WARRANTY. Any
representation or warranty made by the Borrower herein or in any certificate or
statement delivered pursuant hereto or thereto shall prove to be false or
misleading in any material respect on the date as of which made or deemed
(c) BREACH OF COVENANTS. The Borrower shall fail to
perform or observe any agreement, covenant or obligation arising under this
Agreement (except those described in subsections (a) or (b) above), and, if
capable of being remedied, such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Borrower by the Agent;
PROVIDED that there shall be deducted from such number of days any grace period
utilized by the Borrower in notifying the Agent of such Default pursuant to
Section 5.01(a)(iv).
(d) DEFAULT UNDER OTHER AGREEMENTS. The Borrower or any
of its Subsidiaries shall default in the payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) of any amount
owing in respect of any Indebtedness in the principal amount of $50,000,000 or
more and such default shall continue beyond any applicable grace period; or the
Borrower or any of its Subsidiaries shall default in the performance or
observance of any obligation or condition with respect to any Indebtedness or
any other event shall occur or condition exist, if the effect of such default,
event or condition is to accelerate the maturity of any such Indebtedness or to
permit the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such Indebtedness, unless, in each case,
waived by such holder or holders, or any such Indebtedness shall become or be
declared to be due and payable prior to its stated maturity other than as a
result of a regularly scheduled payment, and the principal amount of such
Indebtedness exceeds $50,000,000.
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(e) BANKRUPTCY, ETC. (i) The Borrower or any Material
Subsidiary shall commence a voluntary case concerning itself under the
Bankruptcy Code; or (ii) an involuntary case is commenced against the Borrower
or any Material Subsidiary and the petition is not controverted within 30 days,
or is not dismissed within 60 days, after commencement of the case; or (iii) a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower or any Material
Subsidiary or the Borrower or any Material Subsidiary commences any other
proceedings under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
Material Subsidiary or there is commenced against the Borrower or any Material
Subsidiary any such proceeding which remains undismissed for a period of 60
days; or (iv) any order of relief or other order approving any such case or
proceeding is entered; or (v) the Borrower or any Material Subsidiary is
adjudicated insolvent or bankrupt; or (vi) the Borrower or any Material
Subsidiary suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or (vii) the Borrower or any Material Subsidiary makes a
general assignment for the benefit of creditors; or (viii) the Borrower or any
Material Subsidiary shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or (ix) the
Borrower or any Material Subsidiary shall by any act or failure to act consent
to, approve of or acquiesce in any of the foregoing; or (x) any corporate action
is taken by the Borrower or any Material Subsidiary for the purpose of effecting
any of the foregoing.
(f) ERISA. The Borrower or any member of the ERISA
Controlled Group shall fail to pay when due an amount or amounts aggregating in
excess of $50,000,000 for which it shall have become liable under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans having aggregate
Unfunded Benefit Liabilities in excess of $100,000,000 shall be filed under
Title IV of ERISA by the Borrower or any member of the ERISA Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Plan or Plans having aggregate
Unfunded Benefit Liabilities in excess of $100,000,000 or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Plan or Plans having aggregate Unfunded Benefit
Liabilities in excess of $100,000,00 must be terminated; or there shall occur a
complete or partial withdrawal from, or a default within the meaning of Section
4219(c)(5) of ERISA with respect to, one or more Multiemployer Plans which could
cause the Borrower or one or more members of the ERISA Controlled Group to incur
a current payment obligation in excess of $50,000,000 if not paid when due.
(g) JUDGMENTS. One or more judgments or decrees in an
aggregate amount of $50,000,000 or more shall be entered by a court against the
Borrower or any of its Subsidiaries and (i) any such judgments or decrees shall
not be stayed, discharged, paid, bonded or vacated within 30 days or (ii)
enforcement proceedings shall be commenced by any creditor on any such judgments
or decrees; PROVIDED, HOWEVER, that any such judgment or order shall not be an
Event of Default under this Section 6.01(g) if and for so long as (i) the amount
of such judgment or order is covered by a valid and binding policy of insurance,
with deductible or self-insured retention consistent with industry practices,
between the defendant and the insurer covering payment thereof and (ii) such
insurer, which shall be rated at least "A-" by A.M. Best Company, has been
notified of, and has not disputed the claim made for payment of, the amount of
such judgment or order.
(h) ENVIRONMENTAL MATTERS. (i) Any Environmental Claim
shall have been asserted against the Borrower or any Environmental Affiliate
thereof which may reasonably be expected to have a Material Adverse Effect, (ii)
any release, emission, discharge or disposal of any Material of
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Environmental Concern shall have occurred, and such event could reasonably be
expected to form the basis of an Environmental Claim against the Borrower or any
Environmental Affiliate thereof, which, if determined adversely, may reasonably
be expected to have a Material Adverse Effect, or (iii) the Borrower or its
Environmental Affiliate shall have failed to obtain any Environmental Approval
necessary for the management, use, control, ownership, or operation of its
business, property or assets or any such Environmental Approval shall be
revoked, terminated, or otherwise cease to be in full force and effect, in each
case, if the existence of such condition may reasonably be expected to have a
Material Adverse Effect.
(i) CHANGE IN CONTROL. At any time on or after the
Effective Date a Change in Control shall have occurred.
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by written notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by written notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; PROVIDED, HOWEVER, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; PROVIDED, HOWEVER, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts an Assumption Agreement
entered into by an Assuming Lender as provided in Section 2.18 or 2.19, as the
case may be, or an Assignment and Acceptance entered into by such Lender, as
assignor, and an Eligible Assignee, as
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assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. CITIBANK AND AFFILIATES. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. LENDER CREDIT DECISION. Each Lender
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Advances
then owed to each of them (or if no Revolving Credit Advances are at the time
outstanding, ratably according to the respective amounts of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement (collectively, the
"INDEMNIFIED COSTS"), PROVIDED that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including reasonable counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Agent is not reimbursed for such expenses
by the Borrower. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
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SECTION 7.06. SUCCESSOR AGENT. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. OTHER AGENTS. Each Lender hereby
acknowledges that neither the syndication agent, the documentation agent nor any
other Lender designated as any "Agent" on the signature pages hereof has any
liability hereunder other than in its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of
any provision of this Agreement or the Revolving Credit Notes, nor consent to
any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders affected
thereby, do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase the Commitments of the Lenders (other than in
accordance with Section 2.18) or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Credit Advances, or the number of Lenders, that shall be required for
the Lenders or any of them to take any action hereunder or (f) amend this
Section 8.01; and Provided Further that (x) no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note and (y) no amendment, waiver or consent of
Section 8.07(f) shall, unless in writing and signed by each Lender that has
granted a funding option to an SPC in addition to the Lenders required above to
take such action, affect the rights or duties of such Lender or SPC under this
Agreement or any Note.
SECTION 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx Xxxxx; if to any Initial Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending
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Office specified in the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at Xxx
Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Syndications
Department; or, as to the Borrower or the Agent, at such other address as shall
be designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part
of any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS AND EXPENSES. (a) The Borrower agrees
to pay on demand all reasonable costs and expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all reasonable due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower also agrees not to assert any claim for
special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
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(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, LIBO Rate Advance is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or
(e), 2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a Lender other than
on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.07 as a result
of a demand by the Borrower pursuant to Section 8.07(a), the Borrower shall,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. RIGHT OF SET-OFF. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. BINDING EFFECT. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each
Lender may and, if demanded by the Borrower (following a demand by such Lender
pursuant to Section 2.11 or 2.14 or a notice under Section 2.12 and so long as
no Event of Default has occurred and is continuing) upon at least 5 Business
Days' notice to such Lender and the Agent, will assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and the Revolving Credit Note or Notes held by it);
PROVIDED, HOWEVER, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement (other
than any right to make Competitive Bid
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Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment made as a result of a demand by the Borrower pursuant
to this Section 8.07(a) shall be arranged by the Borrower after consultation
with the Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement, and (vi) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with any
Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500 payable by the parties to each such assignment,
PROVIDED, HOWEVER, that in the case of each assignment made as a result of a
demand by the Borrower, such recordation fee shall be payable by the Borrower
except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Borrower to an Eligible Assignee that is
an existing Lender, and (vii) any Lender may, without the approval of the
Borrower and the Agent, assign all or a portion of its rights to any of its
Affiliates. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Section 2.11, 2.12, 2.14 and
8.04 to the extent any claim thereunder relates to an event arising prior such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement;
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(v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "REGISTER").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); PROVIDED, HOWEVER, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by the Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Each Lender may grant to a special purpose funding
vehicle (an "SPC") the option to fund all or any part of any Advance that such
Lender is obligated to fund under this Agreement (and upon the exercise by such
SPC of such option to fund, such Lender's obligations with respect to such
Advance shall be deemed satisfied to the extent of any amounts funded by such
SPC); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Company hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (iv) any such option granted to an SPC shall
not constitute a commitment by such SPC to fund any Advance, (v) neither the
grant nor the exercise of such option to an SPC shall increase the costs or
expenses or otherwise increase or change the
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obligations of any Borrower under this Agreement (including, without limitation,
its obligations under Section 2.14) and (vi) no SPC shall have any right to
approve any amendment or waiver of any provision of this Agreement or any Note,
or any consent to any departure by any Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such grant of funding option, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
grant of funding option. Each party to this Agreement hereby agrees that no SPC
shall be liable for any indemnity or payment under this Agreement for which a
Lender would otherwise be liable. In furtherance of the foregoing, each party
hereto hereby agrees (which agreements shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other Person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof.
(g) Any Lender may, in connection with any assignment,
participation or grant of funding option or proposed assignment, participation
or grant of funding option pursuant to this Section 8.07, disclose to the
assignee, participant or SPC or proposed assignee, participant or SPC, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; PROVIDED that, prior to any such disclosure, the assignee,
participant or SPC or proposed assignee, participant or SPC shall agree in
writing to preserve the confidentiality of any Confidential Information relating
to the Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. CONFIDENTIALITY. Neither the Agent nor any
Lender or SPC shall disclose any Confidential Information to any other Person
without the consent of the Borrower, other than (a) to the Agent's or such
Lender's Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 8.07(g), to actual or prospective
assignees, participants and SPCs, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process and (c) as requested
or required by any state, federal or foreign authority or examiner regulating
banks or banking.
SECTION 8.09. GOVERNING LAW. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. EXECUTION IN COUNTERPARTS. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. JURISDICTION, ETC. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby
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irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. The Borrower
hereby agrees that service of process in any such action or proceeding brought
in the any such New York State court or in such federal court may be made upon
Corporation Service Company at its offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000 (the "PROCESS AGENT") and the Borrower hereby irrevocably appoints the
Process Agent its authorized agent to accept such service of process, and agrees
that the failure of the Process Agent to give any notice of any such service
shall not impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. The Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to the Borrower at its address specified
pursuant to Section 8.02. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
[Rest of page intentionally left blank]
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54
SECTION 8.12. WAIVER OF JURY TRIAL. Each of the Borrower,
the Agent and the Lenders hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXXXXX CHEMICAL COMPANY
By
--------------------------------
Title:
CITIBANK, N.A.,
as Agent
By
--------------------------------
Title:
Initial Lenders
Commitment
$71,000,000 CITIBANK, N.A.
By
--------------------------------
Title:
$60,000,000 BANK OF AMERICA, N.A.
By
--------------------------------
Title:
$60,000,000 BANK ONE, NA
By
--------------------------------
Title:
84
55
$48,000,000 THE BANK OF NEW YORK
By
--------------------------------
Title:
$48,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By
--------------------------------
Title:
$48,000,000 THE CHASE MANHATTAN BANK
By
--------------------------------
Title:
$48,000,000 DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By
--------------------------------
Title:
By
--------------------------------
Title:
$48,000,000 FIRST UNION NATIONAL BANK
By
--------------------------------
Title:
$48,000,000 MELLON BANK, N.A.
By
--------------------------------
Title:
85
56
$48,000,000 WACHOVIA BANK, N.A.
By
--------------------------------
Title:
$48,000,000 SUNTRUST BANK
By
--------------------------------
Title:
$25,000,000 AMSOUTH BANK, CORP
By
--------------------------------
Title:
$25,000,000 BANCA NAZIONALE DEL LAVORO
By
--------------------------------
Title:
$25,000,000 CREDIT SUISSE FIRST BOSTON
By
--------------------------------
Title:
$25,000,000 THE FUJI BANK, LIMITED
By
--------------------------------
Title:
$25,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
--------------------------------
Title:
86
57
$25,000,000 XXXXXX COMMERCIAL PAPER INC.
By
--------------------------------
Title:
$25,000,000 THE SANWA BANK, LIMITED
By
--------------------------------
Title:
$25,000,000 THE SUMITOMO BANK, LTD.
By
--------------------------------
Title:
$25,000,000 XXXXX FARGO BANK
By
--------------------------------
Title:
$800,000,000 Total of the Commitments
87
58
Execution Copy
U.S. $800,000,000
FIVE-YEAR CREDIT AGREEMENT
Dated as of July 13, 2000
Among
XXXXXXX CHEMICAL COMPANY
AS BORROWER
THE INITIAL LENDERS NAMED HEREIN
AS INITIAL LENDERS
CITIBANK, N.A.
AS ADMINISTRATIVE AGENT
XXXXXXX XXXXX XXXXXX INC.
AS LEAD ARRANGER
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
and
BANK ONE, NA
AS DOCUMENTATION AGENT
88
59
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 31
SECTION 1.01. Certain Defined Terms 31
SECTION 1.02. Computation of Time Periods 44
SECTION 1.03. Accounting Terms 44
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 44
SECTION 2.01. The Revolving Credit Advances 44
SECTION 2.02. Making the Revolving Credit Advances 45
SECTION 2.03. The Competitive Bid Advances 46
SECTION 2.04. Fees 49
SECTION 2.05. Optional Termination or Reduction of the Commitments 49
SECTION 2.06. Repayment of Revolving Credit Advances 50
SECTION 2.07. Interest on Revolving Credit Advances 50
SECTION 2.08. Interest Rate Determination 50
SECTION 2.09. Optional Conversion of Revolving Credit Advances 51
SECTION 2.10. Prepayments of Revolving Credit Advances 52
SECTION 2.11. Increased Costs 52
SECTION 2.12. Illegality 52
SECTION 2.13. Payments and Computations 53
SECTION 2.14. Taxes 54
SECTION 2.15. Sharing of Payments, Etc. 55
SECTION 2.16. Evidence of Debt 55
89
60
SECTION 2.17. Use of Proceeds 56
SECTION 2.18. Increase in the Aggregate Commitments 56
SECTION 2.19. Extension of Termination Date 57
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING 59
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03 59
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing,
Increase Date and Extension Date. 61
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing 62
SECTION 3.04. Determinations Under Section 3.01 62
ARTICLE IV REPRESENTATIONS AND WARRANTIES 62
SECTION 4.01. Representations and Warranties of the Borrower 62
ARTICLE V COVENANTS OF THE BORROWER 66
SECTION 5.01. Affirmative Covenants 66
SECTION 5.02. Negative Covenants 70
SECTION 5.03. Financial Covenants 73
ARTICLE VI EVENTS OF DEFAULTS 73
SECTION 6.01. Events of Default 73
ARTICLE VII THE AGENT 75
SECTION 7.01. Authorization and Action 75
SECTION 7.02. Agent's Reliance, Etc. 75
SECTION 7.03. Citibank and Affiliates 76
SECTION 7.04. Lender Credit Decision 76
90
61
SECTION 7.05. Indemnification 76
SECTION 7.06. Successor Agent 77
SECTION 7.07. Other Agents. 77
ARTICLE VIII MISCELLANEOUS 77
SECTION 8.01. Amendments, Etc. 77
SECTION 8.02. Notices, Etc. 77
SECTION 8.03. No Waiver; Remedies 78
SECTION 8.04. Costs and Expenses 78
SECTION 8.05. Right of Set-off 79
SECTION 8.06. Binding Effect 79
SECTION 8.07. Assignments and Participations 79
SECTION 8.08. Confidentiality 82
SECTION 8.09. Governing Law 82
SECTION 8.10. Execution in Counterparts 82
SECTION 8.11. Jurisdiction, Etc. 82
SECTION 8.12. Waiver of Jury Trial 84
91
62
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(a) - Subsidiaries
Schedule 4.01(d) - Disclosed Litigation
Schedule 4.01(i) - Tax Sharing Agreements
Schedule 4.01(m) - Environmental Matters
Schedule 5.01(d) - Tax Filings with Any Person Other than the Borrower and its Subsidiaries
Schedule 5.02(a) - Leases
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Compliance Certificate
92
