Exhibit 10.1
Execution Copy
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$1,300,000,000
CREDIT AGREEMENT
[2 YEAR TERM LOAN]
dated as of
December 15, 2004
Among
Xxxxx & XxXxxxxx Companies, Inc.,
as Borrower,
The Banks Listed Herein
and
Citibank, N.A.,
as Administrative Agent
Bank of America, N.A. and Deutsche Bank AG New York Branch,
as Syndication Agents
UBS Securities LLC,
as Documentation Agent
Citigroup Global Markets Inc., Banc of America Securities LLC and
Deutsche Bank AG New York Branch,
as Joint Lead Arrangers
Citigroup Global Markets Inc and Banc of America Securities LLC,
as Joint Bookrunners
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS..........................................................1
Section 1.1 Definitions..........................................1
Section 1.2 Accounting Terms and Determinations.................14
Section 1.3 Types of Borrowings.................................15
ARTICLE 2 THE CREDITS.........................................................15
Section 2.1 Commitments to Lend.................................15
Section 2.2 Notice of Committed Borrowing.......................15
Section 2.3 [Intentionally omitted].............................16
Section 2.4 Notice to Banks; Funding of Loans...................16
Section 2.5 Evidence of Debt....................................17
Section 2.6 Maturity of Loans; Rollover Conversions.............17
Section 2.7 Interest Rates......................................18
Section 2.8 Fees................................................19
Section 2.9 [Intentionally omitted].............................19
Section 2.10 [Intentionally omitted].............................19
Section 2.11 Optional Payments, Prepayments, Conversions and
Continuations.......................................19
Section 2.12 General Provisions as to Payments...................20
Section 2.13 Funding Losses......................................21
Section 2.14 Computation of Interest and Fees....................22
Section 2.15 Pro Rata Treatment..................................22
Section 2.16 Lending Offices.....................................22
Section 2.17 Several Obligations; Remedies Independent...........22
ARTICLE 3 CONDITIONS..........................................................22
Section 3.1 Closing.............................................22
Section 3.2 Borrowings. ........................................24
ARTICLE 4 REPRESENTATIONS AND WARRANTIES......................................25
Section 4.1 Corporate Existence and Power.......................25
Section 4.2 Corporate and Governmental Authorization;
No Contravention....................................25
Section 4.3 Binding Effect......................................25
Section 4.4 Financial Information...............................25
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Section 4.5 Litigation..........................................26
Section 4.6 Compliance with ERISA...............................26
Section 4.7 Taxes...............................................26
Section 4.8 Subsidiaries........................................26
Section 4.9 Regulatory Restrictions on Borrowing................27
Section 4.10 Full Disclosure.....................................27
Section 4.11 Use of Credit.......................................27
ARTICLE 5 COVENANTS...........................................................27
Section 5.1 Information. ......................................27
Section 5.2 Conduct of Business and Maintenance of Existence....30
Section 5.3 Compliance with Laws; Borrowing Authorization.......30
Section 5.4 Financial Covenants.................................31
Section 5.5 Consolidations, Mergers and Sales of Assets.........32
Section 5.6 Use of Proceeds. ...................................32
Section 5.7 Negative Pledge.....................................32
Section 5.8 Taxes, Etc. ........................................33
Section 5.9 Maintenance of Insurance............................33
Section 5.10 Transactions with Affiliates........................33
Section 5.11 Dispositions........................................34
Section 5.12 Debt................................................34
Section 5.13 Acquisitions........................................35
Section 5.14 Guarantors..........................................35
Section 5.15 Guaranty Coverage Percentage........................35
ARTICLE 6 Events of DEFAULTS..................................................35
Section 6.1 Events of Default...................................35
ARTICLE 7 THE ADMINISTRATIVE AGENT............................................38
Section 7.1 Appointment and Authorization.......................38
Section 7.2 Administrative Agent and Affiliates.................38
Section 7.3 Action by Administrative Agent......................38
Section 7.4 Consultation with Experts; Sub-Agent................38
Section 7.5 Liability of Administrative Agent...................39
Section 7.6 Indemnification.....................................39
ii
Section 7.7 Credit Decision.....................................39
Section 7.8 Successor Administrative Agent......................39
Section 7.9 Administrative Agent's Fee..........................40
ARTICLE 8 CHANGE IN CIRCUMSTANCES.............................................40
Section 8.1 Basis for Determining Interest Rate
Inadequate or Unfair................................40
Section 8.2 Illegality..........................................40
Section 8.3 Increased Cost and Reduced Return...................41
Section 8.4 Taxes. .............................................42
Section 8.5 Base Rate Loans Substituted for Affected
Euro-Dollar Loans...................................43
ARTICLE 9 MISCELLANEOUS.......................................................44
Section 9.1 Notices.............................................44
Section 9.2 No Waivers..........................................44
Section 9.3 Expenses; Indemnification; Damage Waiver............44
Section 9.4 Sharing of Set-Offs. ...............................45
Section 9.5 Amendments and Waivers..............................45
Section 9.6 Successors and Assigns..............................46
Section 9.7 Governing Law; Submission to Jurisdiction...........48
Section 9.8 Counterparts; Integration; Effectiveness............48
Section 9.9 Waiver Of Jury Trial................................48
Section 9.10 Survival............................................48
Section 9.11 Confidentiality.....................................48
Section 9.12 USA Patriot Act. ...................................49
Section 9.13 Master Agreement. ..................................49
TABLE OF CONTENTS
COMMITMENT SCHEDULE
PRICING SCHEDULE
Schedule 5.11 - Excluded Asset Sales
EXHIBIT A - Assignment and Assumption Agreement
EXHIBIT B - Form of Subsidiary Guaranty
EXHIBIT C - Form of Consolidating Financial Statements of Guarantors
EXHIBIT D-1 - Opinion of General Counsel for Xxxxx & McLennan Companies, Inc.
EXHIBIT D-2 - Opinion of General Counsel for Xxxxxx Investments Trust
EXHIBIT D-3 - Opinion of Special Counsel for Xxxxx &McLennan Companies, Inc.
EXHIBIT E - Opinion of Special Counsel for the Administrative Agent
EXHIBIT F - Form of Committed Note
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CREDIT AGREEMENT [2 YEAR TERM LOAN] (this "Agreement") dated as of
December 15, 2004 among XXXXX & XxXXXXXX COMPANIES, INC., a Delaware corporation
(together with its successors, the "Borrower"), the BANKS party hereto and
CITIBANK, N.A., as administrative agent hereunder.
The Borrower has requested the Banks to make loans to it in the
aggregate principal amount of $1,300,000,000 to finance the operations of the
Borrower, and for other purposes.
To induce the Banks to make such loans, the Borrower, the Banks and the
Administrative Agent propose to enter into this Agreement pursuant to which the
Banks will make loans to the Borrower.
Accordingly, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
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Section 1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Acquisition" means the acquisition, directly, by merger or otherwise,
for consideration in any single transaction or series of related transactions in
excess of $25,000,000 (as determined reasonably and in good faith by the
Borrower), and whether the consideration is cash, securities or other value, of
(a) more than 50% of the capital stock or other equity interests of any Person
(other than the capital stock or other equity interests of a Person which is
(prior to such Acquisition) a Subsidiary of the Borrower), or (b) all or
substantially all of the assets of any Person or any division or business unit
of any Person (other than any such Person which is a Subsidiary of the
Borrower).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.7(b).
"Administrative Agent" means Citibank, N.A., in its capacity as
administrative agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly, controls or is controlled by or is under common
control with the Person specified. For purposes of this definition, the term
"control" (including the correlative meanings of the terms "controlled by" and
"under common control with"), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Amendments to the Revolving Credit Agreements" means (i) Amendment No.
1 to 2002 Credit Agreement [5 Year] dated as of December 15, 2004 among the
Borrower, the banks and other financial institutions party thereto and JPMorgan
Chase Bank, N.A., as administrative agent, and (ii) Amendment No. 1 to 2004
Credit Agreement [5 Year] dated as of December 15, 2004 among the Borrower, the
banks and other financial institutions party thereto and JPMorgan Chase Bank,
N.A., as administrative agent .
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Base Rate Loans, its Domestic Lending Office, and (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Asset Percentage" means, at any date of determination, the ratio,
expressed as a percentage, of (a) the Consolidated total assets of the
Guarantors and their respective Consolidated Subsidiaries, exclusive of
intercompany receivables and interests in Subsidiaries that are not Consolidated
Subsidiaries, to (b) the Consolidated total assets of the Borrower and its
Consolidated Subsidiaries.
"Assignee" has the meaning set forth in Section 9.6(c).
"Bank" means each bank and other financial institution listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors.
"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 higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Loan" means a Committed Loan to be made or Continued as or
Converted into a Base Rate Loan by a Bank in accordance with the applicable
Notice of Committed Borrowing or pursuant to Article 8.
"Base Rate Margin" means a rate per annum determined in accordance with
the Pricing Schedule.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the preamble to this Agreement.
"Borrowing" has the meaning set forth in Section 1.3.
"Citibank" means Citibank, N.A., a national banking association, and
its successors.
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"Closing Date" means the date on or after the Effective Date on which
the Administrative Agent shall have received the documents specified in or
pursuant to Section 3.1.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the Commitment Schedule attached hereto and
identified as such.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.1,
and any Continuation or Conversion thereof.
"Consolidated" refers to the consolidation of accounts in accordance
with generally accepted accounting principles.
"Consolidated Adjusted EBITDA" means, for any Measurement Period, the
sum, determined on a Consolidated basis for the Borrower and its Subsidiaries,
without duplication, of (a) net income (or net loss), (b) interest expense, (c)
income tax expense, (d) depreciation expense, (e) amortization expense, (f) to
the extent deducted in calculating net income (or net loss), charges in respect
of Settlement Costs, (g) to the extent deducted in calculating net income (or
net loss), cash restructuring and reorganization charges (including, without
limitation, severance charges, retention costs and facilities costs) and cash
charges for costs and expenses (other than Settlement Costs) related to
Settlements, in an aggregate amount not to exceed the sum of (i) for any
Measurement Period ending on or before September 30, 2005, all such charges
incurred through December 31, 2004 and publicly disclosed prior to the
Effective Date plus (ii) up to $650,000,000 for all Measurement Periods ending
after December 31, 2004, (h) to the extent deducted in calculating net income
(or net loss), the amount of any losses (and minus the amount of any gains)
associated with sales of assets other than in the ordinary course of business,
(i) stock option compensation expense resulting from the adoption of any
amendments to Financial Accounting Standards Board Statement No. 123, (j) the
amount of any increase (or minus the amount of any decrease) in pension expense
(other than service costs) resulting from the application of Financial
Accounting Standards Board Statement No. 87, and (k) non-recurring non-cash
charges (including, without limitation, in respect of intangibles and
impairments, severance charges, retention costs and facilities costs), in each
case determined in accordance with generally accepted accounting principles for
such Measurement Period.
"Consolidated Fixed Charge Coverage Ratio" means, for any Measurement
Period, the ratio of (a) Consolidated Adjusted EBITDA to (b) the sum, determined
on a Consolidated basis, of (i) interest expense (other than fees paid in
connection with the prepayment of the Mortgage or the Sedgwick Notes), (ii)
Specified Distributions, and (iii) principal payments, redemptions and purchases
(except scheduled principal payments and payments, redemption and purchases in
connection with an exchange offer or refunding to the extent that the same does
not result in a reduction of principal payments due before December 2009) of all
Long-Term Debt (other than the Loans, loans under the Revolving Credit
Agreements, prepayment of the Mortgage from the proceeds of a sale or
refinancing of the Mortgaged Property and prepayment of the Sedgwick Notes) made
by the Borrower and its Consolidated Subsidiaries, to the extent that such
payments
3
reduced any scheduled principal payments that would otherwise have become due
more than one year after the date of such payment, in each case for such
Measurement Period.
"Consolidated Funded Debt" means, without duplication, all Debt of the
Borrower and its Subsidiaries determined on a Consolidated basis, net of cash
and cash equivalents held in the United States free of Liens and rights of
others.
"Consolidated Leverage Ratio" means, at any date of determination, the
ratio of Consolidated Funded Debt at such date to Consolidated Adjusted EBITDA
for the most recently completed Measurement Period.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Continuation" has the meaning set forth in Section 1.3. "Continue" and
"Continued" shall have a correlative meaning.
"Conversion" has the meaning set forth in Section 1.3. "Convert" and
"Converted" shall have a correlative meaning.
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, which are classified as short-term debt or long-term debt in
accordance with generally accepted accounting principles, (iv) all obligations
of such Person as lessee which are capitalized in accordance with generally
accepted accounting principles, (v) all non-contingent obligations (and, for
purposes of Section 5.7 and the definitions of Material Debt and Material
Financial Obligations, all contingent obligations) of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (vi) all Unpaid Settlement Costs net of savings in taxes
reasonably estimated to be realized by such Person in the future as a direct
result of the deductibility of the amount thereof for tax purposes, (vii) all
Debt secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person and (viii) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or other similar transaction (including any option with respect to any of the
foregoing transactions) or any combination of the foregoing transactions.
4
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction), in each case
for consideration in any single transaction or series of related transactions in
excess of $10,000,000 (as determined reasonably and in good faith by the
Borrower), of any property by any Person (or the granting of any option or other
right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any Equity Interests owned by such
Person, or any notes or accounts receivable or any rights and claims associated
therewith.
"Dollars" and "$" means lawful money of the United States.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Domestic Subsidiary" means a Subsidiary of the Borrower formed and
existing under the laws of any state of the United States and the business,
assets and operations of which are located in the United States.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.8.
"Environmental Laws" means any and all present and future Federal,
state, local and foreign environmental laws, rules or regulations, and any
environmental orders or decrees, in each case as now or hereafter in effect,
relating to the regulation or protection of human health, safety or the
environment or to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes
into the indoor or outdoor environment, including, without limitation, ambient
air, soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, chemicals
or toxic or hazardous substances or wastes.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other similar rights entitling the holder thereof to purchase or acquire any
such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Material Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Material Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
5
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan to be made or Continued as or
Converted into a Euro-Dollar Loan by a Bank in accordance with the applicable
Notice of Committed Borrowing.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Citibank on such day on such
transactions as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Dollar Loans.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a correlative meaning.
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"Guarantor" means each of (a) Xxxxx Inc., a Delaware corporation, Xxxxxx
Investments Trust, a Massachusetts business trust, and Mercer Inc., a Delaware
corporation, and (b) and any other direct Consolidated Subsidiary of the
Borrower that executes and delivers to the Administrative Agent a Subsidiary
Guaranty, provided that (i) such Subsidiary is reasonably acceptable to the
Required Banks, and (ii) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, (A) documents of the
types described in Section 3.1(a)(i) and Section 3.1(e) with respect to such
Guarantor and the Subsidiary Guaranty executed by it (and, in the case of any
Guarantor which is a Foreign Subsidiary, such other documents as the
Administrative Agent may reasonably request) and (B) financial statements
described in Section 5.1(a) or (b) for the most recently ended period for which
such financial statements are required to have been delivered for the
Guarantors; and provided further that, anything contained herein to the contrary
notwithstanding, the term Guarantor shall not include any Subsidiary of the
Borrower holding, as of the date of the most recent audited financial statements
of the Borrower and its Consolidated Subsidiaries delivered pursuant to this
Agreement, assets having an aggregate book value of $20,000,000 or less. If (1)
the Borrower shall have identified a direct Consolidated Subsidiary of the
Borrower as a proposed Guarantor in a written notice to the Banks, and (2) the
Required Banks (or the Administrative Agent with the consent of the Required
Banks) shall not have objected in writing within 10 Business Days after the
giving of such notice, such Subsidiary shall be deemed to be acceptable to the
Required Banks for purposes of clause (i) above, provided that requirements of
clause (ii) above are met within 30 days after the next delivery of financial
statements described in Section 5.1(a) or (b) occurring thereafter.
"Guaranty Coverage Percentage" means, as of any date of determination in
relation to any transaction or event described herein (each, an "Event"), each
of the Asset Percentage, the Revenue Percentage and the Net Operating Income
Percentage, in each case determined as of the most recently ended fiscal quarter
of the Borrower for which financial statements have been delivered pursuant to
Section 5.1(a) or (b) and calculated on a pro forma basis giving effect to the
applicable Event. For purposes of Sections 5.1(c)(ii) and 5.15, the Guaranty
Coverage Percentage means each of the Asset Percentage, the Revenue Percentage
and the Net Operating Income Percentage as of the end of the fiscal quarter most
recently ended.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Period" means:
(1) with respect to each Euro-Dollar Borrowing, the period
commencing on the date of such Borrowing and ending one, two, three or
six months thereafter, as the Borrower may elect (so long as such period
does not extend beyond the Termination Date) in the applicable Notice of
Committed Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
7
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day of a
calendar month; and
(c) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date; and
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 90 days thereafter;
provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b) below) which would otherwise
end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) any Interest Period which would otherwise end after
the Termination Date shall end on the Termination Date;
provided that, notwithstanding clause 1(c), above, no Interest Period for a
Euro-Dollar Borrowing shall have a duration of less than one month and, if such
Interest Period would otherwise be a shorter period, such Borrowing shall not be
available hereunder for such period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and "Loans" means
Base Rate Loans or Euro-Dollar Loans or any combination of the foregoing.
"Loan Documents" means (i) this Agreement, (ii) the Notes, (iii) each
Subsidiary Guaranty, and (iv) the Master Agreement.
"Loan Parties" means the Borrower and the Guarantors.
"London Interbank Offered Rate" has the meaning set forth in Section
2.7(b).
"Long-Term Debt" means any Debt that, in accordance with generally
accepted accounting principles, constitutes (or, when incurred, constituted) a
long-term liability.
"Margin Stock" means "margin stock" within the meaning of Regulations U
and X.
8
"Master Agreement" means the Master Agreement, dated as of December 15,
2004, among the Borrower, the Administrative Agent and the "Administrative
Agent" under and as defined in each of the Revolving Credit Agreements.
"Material Debt" means Debt (other than the Loans made hereunder ) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal amount exceeding
$100,000,000.
"Material Financial Obligations" means any Debt and/or Derivatives
Obligation of the Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, the principal or face amount
(with respect to Debt) or Settlement Amount (with respect to Derivatives
Obligations, after giving effect to any netting arrangements) of which exceeds
in the aggregate $100,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $30,000,000.
"Material Subsidiary" means at any time a Subsidiary which as of such
time meets the definition of a "significant subsidiary" contained as of the date
hereof in Regulation S-X of the Securities and Exchange Commission.
"Measurement Period" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower ending on or
prior to such date.
"Mortgage" means (a) the Restated Mortgage and Indenture and Security
Agreement dated as of April 6, 1989 made by the Borrower, Xxxxx & XxXxxxxx,
Incorporated, Xxxxxxx X. Xxxxxx Xxxxxxxxx-Xxxxxx, Incorporated and Xxxxx &
McLennan Group Associates, Inc., tenants in common, as mortgagor, and The First
National Bank of Boston, trustee, as mortgagee, as amended and supplemented from
time to time, including, without limitation, as described in the mortgage
memorandum, securing certain notes and covering the Borrower's headquarters
located at 1166 Avenue of the Americas, New York, New York (the "Original
Mortgage"), and (b) any instrument evidencing a refunding or refinancing of the
Original Mortgage, provided that (i) recourse to the Borrower and any Subsidiary
of the Borrower is limited in substantially the same manner as set forth in the
Original Mortgage, and (ii) the security is limited to the Mortgaged Property
and any other interest held by the Borrower and its Subsidiaries in the property
located at 1166 Avenue of the Americas, New York, New York.
"Mortgaged Property" has the meaning set forth in the Mortgage.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
9
"Net Cash Proceeds" means:
(a) with respect to any Disposition by the Borrower or any of its
Consolidated Subsidiaries, the excess, if any, of (i) the sum of cash
and cash equivalents received in connection with such transaction
(including any cash or cash equivalents received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) over (ii) the sum of (A)
the principal amount of any Debt that is secured by the applicable asset
or, in the case of a Disposition of a Subsidiary, any Debt of such
Subsidiary, that is required to be and is repaid by the Borrower or such
Consolidated Subsidiary, as the case may be, in connection with such
transaction (other than Debt under the Loan Documents), (B) the
out-of-pocket expenses incurred by such Person in connection with such
transaction and (C) taxes reasonably estimated to be payable by such
Person, and the amount of any reserves established by such Person in
accordance with generally accepted accounting principles to fund
contingent liabilities reasonably estimated to be payable, in each case
within two years of the date of the relevant transaction and directly
attributable to the relevant transaction (as determined reasonably and
in good faith by a financial officer of such Person); and
(b) with respect to the incurrence or issuance of any Debt by the Borrower
or any of its Consolidated Subsidiaries, the excess of (i) the sum of
the cash and cash equivalents received in connection with such
transaction over (ii) the underwriting discounts and commissions,
arrangement and participation fees and other out-of-pocket expenses
incurred by such Person in connection therewith.
"Net Operating Income" means, for any period, the sum, determined on a
Consolidated basis for the Borrower and its Subsidiaries or the Guarantors and
their respective Subsidiaries, as the case may be, of (a) net income (or net
loss), (b) interest expense, (c) income tax expense, (d) depreciation expense,
(e) amortization expense, (f) to the extent deducted in calculating net income
(or net loss), charges in respect of Settlement Costs, (g) to the extent
deducted in calculating net income (or net loss), cash restructuring and
reorganization charges (including, without limitation, severance charges,
retention costs and facilities costs) and cash charges for costs and expenses
(other than Settlement Costs) related to Settlements, in an aggregate amount not
to exceed the sum of (i) for any Measurement Period ending on or before
September 30, 2005, all such charges incurred through December 31, 2004 and
publicly disclosed prior to the Effective Date plus (ii) up to
$650,000,000 for all Measurement Periods ending after December 31, 2004, (h) to
the extent deducted in calculating net income (or net loss), the amount of any
losses (and minus the amount of any gains) associated with sales of assets other
than in the ordinary course of business, (i) stock option compensation expense
resulting from the adoption of any amendments to Financial Accounting Standards
Board Statement No. 123, (j) the amount of any increase (or minus the amount of
any decrease) in pension expense (other than service costs) resulting from the
application of Financial Accounting Standards Board Statement No. 87, and (k)
non-recurring non-cash charges (including, without limitation, in respect of
10
intangibles and impairments, severance charges, retention costs and facilities
costs), in each case determined in accordance with generally accepted accounting
principles for such Measurement Period.
"Net Operating Income Percentage" means, at any date of determination,
the ratio, expressed as a percentage, of (a) the Consolidated Net Operating
Income of the Guarantors and their respective Consolidated Subsidiaries for the
12-month period ending on such date, to (b) the Consolidated Net Operating
Income of the Borrower and its Consolidated Subsidiaries for such 12-month
period.
"Note" means any promissory note of the Borrower issued pursuant to
Section 2.5 hereof, evidencing the obligation of the Borrower to repay Committed
Loans of any Bank.
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.2).
"Other Taxes" has the meaning set forth in Section 8.4.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other amount under this Agreement that is not paid when due (whether at
stated maturity, by acceleration, by optional or mandatory prepayment or
otherwise), a rate per annum during the period from and including the due date
to but excluding the date on which such amount is paid in full equal to 2% plus
the Base Rate as in effect from time to time (provided that, if the amount so in
default is principal of a Euro-Dollar Loan and the due date thereof is a day
other than the last day of the Interest Period therefor, the "Post-Default Rate"
for such principal shall be, for the period from and including such due date to
but excluding the last day of the Interest Period, 2% plus the interest rate for
such Loan as provided in Section 2.7 and, thereafter, the rate provided for
above in this definition).
11
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Regulations A, D, U and X" means, respectively, Regulations A, D, U and
X of the Board of Governors of the Federal Reserve System (or any successor), as
in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Banks" means at any time (a) prior to the Closing Date, Banks
having more than 50% of the aggregate amount of the Commitments, and (b) from
and after the Closing Date, Banks holding more than 50% of the aggregate
outstanding principal amount of the Loans (or, if no such principal is
outstanding, 50% of all other obligations then owing under this Agreement).
"Required Percentage" means (a) in the case of the Asset Percentage,
75%, (b) in the case of the Revenue Percentage, 85%, and (c) in the case of the
Net Operating Income Percentage, 85%.
"Revenue Percentage" means, at any date of determination, the ratio,
expressed as a percentage, of (a) the Consolidated service revenues of the
Guarantors and their respective Consolidated Subsidiaries for the 12-month
period ending on such date, to (b) the Consolidated service revenues of the
Borrower and its Consolidated Subsidiaries for such 12-month period.
"Revolving Credit Agreements" means (i) the Credit Agreement [5 Year]
dated as of June 13, 2002 among the Borrower, the banks and other financial
institutions party thereto and JPMorgan Chase Bank, as administrative agent, and
(ii) the Credit Agreement [5 Year] dated as of June 9, 2004 among the Borrower,
the banks and other financial institutions party thereto and JPMorgan Chase
Bank, as administrative agent, in each case as amended, supplemented or
otherwise modified from time to time.
"Sedgwick Notes" means the $60,000,000 7.68% Guaranteed Senior Notes of
the Borrower due April 1, 2006.
"Settlement" means the settlement by the Borrower and its Subsidiaries
of a Specified Claim.
"Settlement Amount" means, in respect of any Derivatives Obligation to
which the Borrower and/or any Subsidiary is a party, the net aggregate
marked-to-market (in accordance with standard industry practice) amount, if any,
that would be due in respect of such Derivatives Obligation (together with all
other Derivatives Obligations under the same master agreement and giving effect
to any netting arrangements between the parties to such master agreement) if
such Derivatives Obligation was (and such other Derivatives Obligations were)
terminated because of a default by the Borrower or such Subsidiary.
"Settlement Costs" means all costs and obligations incurred, owing, paid
or payable by the Borrower or any Subsidiary of the Borrower in connection with
the settlement of any Specified Claim, including, without limitation, payment of
restitution, fines and penalties, but
12
excluding amounts payable to legal counsel or other advisors of the Borrower or
any Subsidiary of the Borrower.
"Settlement Debt" means Debt incurred by the Borrower or any Subsidiary
to the extent that (a) the Net Cash Proceeds thereof have been used to pay or
refinance Settlement Costs or (b) an amount equal to the Net Cash Proceeds
thereof are held in cash and cash equivalents (free of Liens and rights of
others) in a segregated account in the United States (and not used for any
purpose other than payment of Settlement Costs or prepayment of the Loans) and a
financial officer of the Borrower has certified to the Administrative Agent in
writing (which certification may be made at any time) that the Borrower has
reasonably determined in good faith that such proceeds are expected to be used
to pay Settlement Costs within six months following such certification.
"Settlement Proceeds" means Net Cash Proceeds from the Disposition of
any property or assets to the extent that (a) such Net Cash Proceeds thereof
have been used to pay or refinance Settlement Costs or (b) an amount equal to
such Net Cash Proceeds is held in cash and cash equivalents (free of Liens and
rights of others) in a segregated account in the United States (and not used for
any purpose other than payment of Settlement Costs or prepayment of the Loans)
and a financial officer of the Borrower has certified to the Administrative
Agent in writing (which certification may be made at any time) that the Borrower
has reasonably determined in good faith that such amount is expected to be used
to pay Settlement Costs within six months following such certification.
"Specified Claim" means (a) the civil complaint filed on October 14,
2004 by the Attorney General of the State of New York against the Borrower and
Xxxxx Inc. in the Supreme Court of New York County and the other matters
described under the heading "Marsh Related Matters" in Note 13 to the financial
statements included in the Borrower's quarterly report on Form 10-Q for the
fiscal quarter ended September 30, 2004 as filed with the Securities and
Exchange Commission ("Note 13"), (b) the civil administrative proceedings by the
Securities and Exchange Commission and the Massachusetts Securities Division
against Xxxxxx Investments Trust and its Subsidiaries and the other matters
described under the heading "Xxxxxx Matters" in Note 13, (c) the other inquiries
and matters, including without limitation those related to Xxxxxx Inc. and its
Subsidiaries, described under the headings "Other Inquiries" and "Other Matters"
in Note 13, and (d) any claim arising out of, or any action, suit or proceeding
filed or threatened against the Borrower or any Subsidiary of the Borrower based
on, allegations similar to those set forth in the complaints and other documents
filed with respect to the foregoing or related thereto.
"Specified Debt" means Debt of the type described in clause (i) of the
definition of Debt (other than (a) commercial paper and (b) Debt (other than
Long-Term Debt) of any Subsidiary incurred in the ordinary course of business
for general corporate purposes consistent with past practices), in each case in
a principal amount in any single transaction or series of related transactions
in excess of $5,000,000, other than (i) Settlement Debt, (ii) Debt under the
Mortgage, and (iii) Debt incurred to refinance or refund other Debt permitted
hereunder to the extent not in excess of the Debt refinanced or refunded.
13
"Specified Distributions" means any dividends or other distributions
(whether in cash, securities or other property) with respect to the shares of
common stock of the Borrower or any payment (whether in cash, securities or
other property) on account of the purchase, redemption or retirement of shares
of common stock of the Borrower or options, warrants or similar rights for the
purchase or other acquisition thereof (other than payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries).
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guaranty" means a Subsidiary Guaranty, substantially in the
form of Exhibit B hereto (or, if the Guarantor is a Foreign Subsidiary, in such
form having substantially the same effect as the Administrative Agent may
reasonably require), executed by a Subsidiary of the Borrower in favor of the
Administrative Agent and the Banks.
"Taxes" has the meaning specified in Section 8.4.
"Termination Date" means December 31, 2006 or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"Unpaid Settlement Costs" means Settlement Costs that have not been
paid.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated Subsidiary
all of the shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
Section 1.2 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared, in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the
14
Borrower and its Consolidated Subsidiaries delivered to the Banks; provided
that, if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant (and any related definition) in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks, respectively. Without
limitation on the foregoing, any reference in any definitions to cash charges
shall mean charges that are or are expected to be incurred or paid in cash, and
any reference to non-cash charges shall mean charges that are not expected to be
paid in cash at any time.
Section 1.3 Types of Borrowings. The term "Borrowing" denotes the aggregation of
Loans of the Banks to be made pursuant to Article 2 on a single date and for a
single Interest Period. A "Borrowing" also includes (x) the conversion
("Conversion") of such aggregation of Loans from one interest rate pricing type
of Loan to another type at the end of the Interest Period therefor (or as
otherwise provided herein) and (y) the continuation ("Continuation") of such
aggregation of Loans at the same interest rate pricing type of Loan from one
Interest Period (or as otherwise provided herein) to another. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Fixed Rate Borrowing" is a Euro-Dollar
Borrowing and a "Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar
Loans).
ARTICLE 2
THE CREDITS
-----------
Section 2.1 Commitments to Lend. On the Closing Date, each Bank severally
agrees, on the terms and conditions set forth in this Agreement, to make a loan
to the Borrower pursuant to this Section in an amount equal to the amount of its
Commitment. Each Borrowing (including any Conversion or a Continuation) shall be
in an aggregate principal amount of (x) in the case of a Base Rate Borrowing,
$5,000,000 and (y) in the case of a Euro-Dollar Borrowing, $10,000,000 or, in
either case, any larger multiple of $1,000,000 and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.11, prepay Loans and, subject to Section 2.11,
Convert and Continue Committed Loans at any time until the Termination Date;
provided that no more than twenty (20) separate Interest Periods in respect of
Euro-Dollar Loans from each Bank may be outstanding at any one time. Amounts
borrowed and thereafter repaid or prepaid may not thereafter be reborrowed.
Section 2.2 Notice of Committed Borrowing. (a) The Borrower shall give the
Administrative Agent notice (a "Notice of Committed Borrowing") not later than
10:30 A.M. (New York City time) on (x) the date of each Base Rate Borrowing and
(y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
15
(i) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Section 2.3 [Intentionally omitted].
Section 2.4 Notice to Banks; Funding of Loans. (a) Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (or 1:00 P.M., in the case of a same day Base Rate
Borrowing) (New York City time) on the date of each Borrowing (that is not a
Conversion or Continuation), each Bank participating therein shall make
available its share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Administrative Agent for account of the
Borrower, at account number 00000000 maintained by the Administrative Agent with
Citibank at its address referred to in Section 9.1 (or to such other account as
the Administrative Agent shall advise the Banks in writing). Unless the
Administrative Agent determines that any applicable condition specified in
Article 3 has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower by depositing the same, in
immediately available funds, in an account of the Borrower designated by the
Borrower maintained by it with Citibank at the aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a Bank prior
to the time of any Borrowing (that is not a Conversion or Continuation) that
such Bank will not make available to the Administrative Agent such Bank's share
of such Borrowing, the Administrative Agent may assume that such Bank has made
such share available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (b) of this Section and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Bank shall not have
so made such share available to the Administrative Agent, such Bank and the
Borrower severally agree to repay to the Administrative 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 Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.7 and (ii) in the case of
such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding
16
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
Section 2.5 Evidence of Debt.
(a) Each Bank may, by notice to the Borrower and the Administrative Agent,
request that its Commitment or its Loans of a particular type be evidenced by a
promissory note in the form of Exhibit F, in an amount equal to its Commitment
or the aggregate unpaid principal amount of such Loans, as the case may be. In
such event, the Borrower, at its costs, shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns).
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.6) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns). Each such promissory note shall be in
form and substance reasonably satisfactory to the requesting Bank, the Borrower
and the Administrative Agent.
(b) Each Bank shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Bank resulting from
each Loan made by such Bank, including the amounts of principal and interest
payable and paid to such Bank from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record
(i) the amount of each Loan made hereunder and the type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Bank hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for the account of the Banks and each Bank's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c)
of this Section shall be prima facie evidence of the existence and amounts of
the obligations recorded therein; provided that the failure of any Bank or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
Section 2.6 Maturity of Loans; Rollover Conversions. (a) The Borrower hereby
promises to pay to the Administrative Agent for account of each Bank the entire
outstanding principal amount of the Committed Loans of such Bank, and each
Committed Loan shall mature, on the Termination Date.
(b) [Intentionally omitted]
(c) If the Borrower shall not have given a timely notice prior to the last day
of the Interest Period for any Loan for either (i) a Borrowing in a principal
amount at least equal to the outstanding principal amount of such Loan effective
on the last day of such Interest Period or (ii) a payment or prepayment of the
entire amount of such Loan effective on the last day of such Interest Period,
then, automatically and without further action, such Loan (or relevant portion
17
thereof) will be Converted into, or Continued as, as the case may be, a Base
Rate Loan, and a Base Rate Borrowing shall be effected on the last day of such
Interest Period in a principal amount equal to the principal amount of such Loan
not subject to a Borrowing and/or payment/prepayment.
Section 2.7 Interest Rates.
(a) Base Rate Loans. The Borrower hereby promises to pay to the Administrative
Agent for account of each Bank interest on the outstanding principal amount of
each Base Rate Loan of such Bank, for each day from the date such Loan is made,
Continued or Converted into a Base Rate Loan until it is paid, prepaid, becomes
due or is Converted into a Loan of a different type at a rate per annum equal to
the sum of the Base Rate Margin for such day plus the Base Rate for such day.
Such interest shall be payable for each Interest Period on the last day thereof
(or any earlier date of payment or prepayment thereof or Conversion into a Loan
of a different type).
(b) Euro-Dollar Loans. The Borrower hereby promises to pay to the Administrative
Agent for account of each Bank interest on the outstanding principal amount of
each Euro-Dollar Loan of such Bank, for each day during the Interest Period
applicable thereto, at a rate per annum equal to the sum of the Euro-Dollar
Margin for such day plus the Adjusted London Interbank Offered Rate applicable
to such Interest Period. Such interest shall be payable for each Interest Period
on the last day thereof (or any earlier date of payment, prepayment or
Continuation thereof or Conversion into a Loan of a different type) and, if such
Interest Period is longer than three months, at intervals of three months after
the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the rate (rounded upward, if necessary, to the next higher 1/16 of
1%) appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Administrative Agent from time
to time for purposes of providing quotations of interest rates applicable to
dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Euro-Dollar Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
Dollars in respect of "Eurocurrency liabilities" (as such term is used in
Regulation D of the Board of Governors of the Federal Reserve System) (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is
18
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Bank to United States
residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(c) [Intentionally omitted].
(d) Post Default Interest. Notwithstanding the foregoing, the Borrower hereby
promises to pay to the Administrative Agent for account of each Bank interest at
the applicable Post-Default Rate on any principal of any Loan of such Bank, and
on any other amount payable by the Borrower hereunder or under the Notes held by
such Bank to or for account of such Bank, which shall not be paid in full when
due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Interest payable at the
Post-Default Rate shall be payable from time to time on demand.
(e) Determinations. The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
Section 2.8 Fees. The Borrower shall pay from time to time, for the account of
the Administrative Agent and the Joint Lead Arrangers, such fees as may be
agreed from time to time.
Section 2.9 [Intentionally omitted].
Section 2.10 [Intentionally omitted].
Section 2.11 Optional Payments, Prepayments, Conversions and Continuations. (a)
Subject in the case of any Fixed Rate Loans to Section 2.13, the Borrower may,
(i) upon notice to the Administrative Agent given no later than 10:30 A.M. (New
York City time) on the same day, prepay any Base Rate Borrowing or (ii) upon at
least three Euro-Dollar Business Days' notice to the Administrative Agent,
prepay any Euro-Dollar Borrowing, in each case in whole at any time, or from
time to time in part, in amounts aggregating $5,000,000 or any larger multiple
of $1,000,000, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. The Borrower may, upon
notice to the Administrative Agent given no later than 10:30 A.M. (New York City
time) on the last day of the Interest Period for any Loan, pay such Loan on such
day in whole or in part by paying the principal amount to be paid together with
accrued interest thereon.
(b) If the Borrower or any of its Consolidated Subsidiaries Disposes of any
property or assets (other than any Disposition of property or assets (i)
permitted by Section 5.11(b), (c), (d) or, to the extent that the amount of the
Net Cash Proceeds does not exceed the cost of the replacement assets, (e), (ii)
consisting of the Mortgaged Property, or (iii) to the extent that the Net Cash
Proceeds thereof constitute Settlement Proceeds) or incurs any Specified Debt
and the aggregate Net Cash Proceeds received by the Borrower and its
Subsidiaries after the date hereof for all such transactions exceeds
$250,000,000 by $50,000,000 or more, the Borrower
19
shall, within five (5) Euro-Dollar Business Days after receipt thereof, prepay
an aggregate principal amount of Loans equal to 75% of the amount of such
excess, and thereafter as and when additional Net Cash Proceeds are received in
aggregate amounts of $50,000,000 or more, the Borrower shall, within five (5)
Euro-Dollar Business Days after receipt thereof, further prepay the principal of
the Loans in an amount equal to 75% of the amount of such additional Net Cash
Proceeds. For purposes of this Section 2.11(b), to the extent that the proceeds
of any Settlement Debt described in clause (b) of the definition thereof or of
any Settlement Proceeds described in clause (b) of the definition thereof are
(A) not used to pay Settlement Costs within six months after the date of the
certification referred to in such clauses or (B) no longer expected by the
Borrower in good faith to be used to pay Settlement Costs, such proceeds shall
be deemed to be Net Cash Proceeds (which are not Settlement Proceeds or proceeds
of any Settlement Debt described in clause (b) of the definition thereof)
received by the Borrower on the last day of such six-month period or on the date
on which such proceeds are no longer expected by the Borrower in good faith to
be used for such purpose, as the case may be. The Borrower shall notify the
Administrative Agent of the anticipated receipt of any Net Cash Proceeds and any
prepayment required by this Section 2.11(b) no later than 10:30 A.M. (New York
City time) on the same day (in the case of any prepayment of a Base Rate
Borrowing) or at least three Euro-Dollar Business Days' in advance (in the case
of any prepayment of a Euro-Dollar Borrowing).
(c) Except as provided in subsections (a) and (b) above and subsection (e)
below, the Borrower may not prepay, Continue or Convert all or any portion of
the principal amount of any Loan prior to the last day of the Interest Period
therefor.
(d) Upon receipt of a notice of prepayment, Continuation or Conversion pursuant
to this Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such prepayment,
Continuation or Conversion and such notice shall not thereafter be revocable by
the Borrower.
(e) The Borrower may Convert or Continue Committed Loans at any time or from
time to time, provided that (a) the Borrower shall give the Administrative Agent
notice of each such Conversion or Continuation as provided in Section 2.2, (b)
any Conversion or Continuation of a Euro-Dollar Loan other than on the last day
of the Interest Period therefor shall be subject to Section 2.13 and (c) the
Borrower may Convert into or Continue a Euro-Dollar Loan at any time a Default
shall be continuing only with the prior written consent of the Required Banks.
Section 2.12 General Provisions as to Payments. (a) The Borrower shall make each
payment of principal of, and interest on, the Loans and of fees hereunder, not
later than 12:00 Noon (New York City time) on the date when due, in Dollars in
Federal or other funds immediately available in New York City, without
deduction, set-off or counterclaim, to the Administrative Agent at account
number 00000000 maintained by the Administrative Agent with Citibank at its
address referred to in Section 9.1 (or to such other account as the
Administrative Agent shall advise the Borrower in writing). If the due date of
any payment under this Agreement would otherwise fall on a day that is not a
Domestic Business Day, such date shall be extended to the next succeeding
Domestic Business Day, and interest shall be payable for any principal so
extended for the period of such extension.
20
(b) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Administrative Agent may assume
that the Borrower has made such payment in full to the Administrative Agent on
such date and the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that the Borrower shall not have
so made such payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Administrative Agent, at the
Federal Funds Rate.
(c) The Borrower shall, at the time of making each payment under this Agreement
or any Note for account of any Bank, specify to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans or other amounts
payable by the Borrower hereunder to which such payment is to be applied (and in
the event that the Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent may distribute such payment
to the Banks for application in such manner as it or the Required Banks, subject
to Section 2.15, may determine to be appropriate).
(d) Each payment received by the Administrative Agent under this Agreement or
any Note for account of any Bank shall be paid by the Administrative Agent
promptly to such Bank, in immediately available funds, for account of such
Bank's Applicable Lending Office for the Loan or other obligation in respect of
which such payment is made.
Section 2.13 Funding Losses. If the Borrower makes any payment of principal with
respect to any Fixed Rate Loan (pursuant to Article 2, 6 or 8 or otherwise) on
any day other than the last day of the Interest Period applicable thereto, or if
the Borrower fails to borrow, prepay, Convert into or Continue any Fixed Rate
Loans after notice has been given to any Bank in accordance with Section 2.4(a)
or 2.11(d), or the Borrower Converts or Continues any Fixed Rate Loan other than
on the last day of the Interest Period applicable thereto, the Borrower shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment, failure to borrow, prepay, Convert
or Continue or Conversion or Continuation, provided that such Bank shall have
delivered to the Borrower a written request as to the amount of such loss or
expense, which written request shall be conclusive in the absence of manifest
error. Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest that otherwise would have accrued on the principal amount so paid,
prepaid, Continued, Converted or not borrowed, Converted or Continued for the
period from the date of such payment, prepayment, failure to borrow, Convert or
Continue, Conversion or Continuation to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing, Conversion or Continuation) at the applicable rate of
interest for such Loan provided for herein (excluding loss of margin) over (ii)
the amount of interest that otherwise would have accrued on such principal
amount at a rate per annum equal to the interest component of the amount such
Bank would have bid in the London interbank market.
21
Section 2.14 Computation of Interest and Fees. Interest based on the Base Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest and fees hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.15 Pro Rata Treatment. Except to the extent otherwise provided herein:
(a) each borrowing and Continuation of, and each Conversion into, Committed
Loans from the Banks under Section 2.1 shall be made from or by, as the case may
be, the Banks pro rata according to the amounts of their respective Commitments;
(b) the making and Continuation of, and Conversion into, Committed Loans shall
be made pro rata among the Banks according to the amounts of their respective
Commitments; (c) each payment or prepayment of principal of Committed Loans
shall be made for account of the Banks pro rata in accordance with the
respective unpaid principal amounts of the Committed Loans held by them,
provided that if immediately prior to giving effect to any such payment in
respect of any Committed Loan the outstanding principal amount of the Committed
Loans shall not be held by the Banks pro rata in accordance with their
respective Commitments in effect at the time such Loans were made (by reason of
a failure of a Bank to make a Loan hereunder in the circumstances described in
the last paragraph of Section 9.5), then such payment shall be applied to the
Committed Loans in such manner as shall result, as nearly as is practicable, in
the outstanding principal amount of the Committed Loans being held by the Banks
pro rata in accordance with their respective Commitments; and (d) each payment
of interest on Committed Loans shall be made for account of the Banks pro rata
in accordance with the amounts of interest on such Loans then due and payable to
the Banks.
Section 2.16 Lending Offices. The Loans of each type made, Continued or
Converted by each Bank shall be made, Continued, Converted and maintained at
such Bank's Applicable Lending Office for Loans of such type.
Section 2.17 Several Obligations; Remedies Independent. The failure of any Bank
to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither any Bank nor the Administrative Agent shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank, and no
Bank shall have any obligation to the Administrative Agent or any other Bank for
the failure by such Bank to make any Loan required to be made by such Bank. The
amounts payable by the Borrower at any time hereunder to each Bank shall be a
separate and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement, and it shall not be necessary
for any other Bank or the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
ARTICLE 3
CONDITIONS
----------
Section 3.1 Closing. The closing hereunder shall occur upon receipt by the
Administrative Agent of the following documents, each dated the Closing Date
unless otherwise indicated:
22
(a) (i) an opinion of Xxxxx Xxxxxx, Esq., General Counsel of the Borrower,
substantially in the form of Exhibit D-1 hereto, and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request; (ii) an opinion of Xxxxx
XxXxxxxx, Esq., General Counsel of Xxxxxx Investments Trust,
substantially in the form of Exhibit D-2 hereto, and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request; and (iii) an opinion of Xxxxx
Xxxx & Xxxxxxxx, special counsel for the Borrower, in substantially the
form of Exhibit D-3, hereto;
(b) an opinion of Shearman & Sterling LLP, counsel for the Administrative
Agent, substantially in the form of Exhibit E hereto and covering such
additional matters relating to the transactions contemplated hereby as
the Required Banks may reasonably request;
(c) evidence satisfactory to the Administrative Agent that the Commitments
under (and as defined in) (i) the Credit Agreement [364 Day] dated as of
July 7, 2004 (as amended, supplemented or otherwise modified) among the
Borrower, the banks and other financial institutions party thereto and
Bank of America, N.A. as administrative agent, and (ii) the Credit
Agreement [364 Day] dated as of June 9, 2004 (as amended, supplemented
or otherwise modified) among the Borrower, the banks and other financial
institutions party thereto and JPMorgan Chase Bank, as administrative
agent, have been terminated and that all amounts owing thereunder by the
Borrower to the banks party thereto or the administrative agent
thereunder have been paid in cash in full;
(d) evidence satisfactory to the Administrative Agent that the Amendments to
the Revolving Credit Agreements and the Master Agreement have become
effective;
(e) the following documents of each of the Loan Parties, each certified as
indicated below:
(i) a copy of the certificate of incorporation or comparable document, as
amended and in effect, certified as of a recent date by the Secretary of
State of its jurisdiction, and a certificate from such Secretary of
State dated as of a recent date as to the good standing of and charter
documents filed by each of the Loan Parties;
(ii) a certificate of the Secretary or an Assistant Secretary of each Loan
Party, dated the Closing Date and certifying (A) that attached thereto
is a true and complete copy of the by-laws of such Loan Party, as in
effect on the Closing Date, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors
authorizing the execution, delivery and performance of the Loan
Documents and, in the case of the Borrower, the Loans hereunder, and
such other documents to which such Loan Party is or is intended to be a
party, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the charter or
comparable document of such Loan Party has not been amended since the
date of the certification thereto furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each
officer executing this Agreement (in the case of the Borrower) and each
of the other documents to which such Loan Party is intended to be a
party and each other document to be delivered by such Loan Party from
time to time in
23
connection herewith or therewith (and the Administrative Agent and each
Bank may conclusively rely on each such certificate until it receives
notice in writing from the applicable Loan Party); and
(iii) a certificate of another officer of each Loan Party as to the incumbency
and specimen signature of the Secretary or Assistant Secretary, as the
case may be;
(f) a certificate of a senior officer of the Borrower, dated the Closing
Date, to the effect set forth in Section 3.2(d) and (e);
(g) a Subsidiary Guaranty duly executed by each Guarantor listed in clause
(a) of the definition thereof; and
(h) such other documents as the Administrative Agent or any Bank or special
counsel to the Administrative Agent may reasonably request.
Section 3.2 Borrowings. The obligation of any Bank to make a Loan on the
occasion of any Borrowing (other than a Continuation or Conversion) is subject
to the satisfaction of the following conditions:
(a) the fact that the Closing Date shall have occurred on or prior to December
31, 2004;
(b) receipt by the Administrative Agent of a Notice of Borrowing as required by
Section 2.2;
(c) [intentionally omitted];
(d) the fact that, immediately before and after such Borrowing, no Default shall
have occurred and be continuing;
(e) the fact that the representations and warranties of the Borrower contained
in this Agreement (except in the case of any Borrowing made on a date subsequent
to the Closing Date, the representation and warranty set forth in Section
4.4(b)) and the representations and warranties of each Guarantor set forth in
the Subsidiary Guaranty to which it is a party shall be true on and as of the
date of such Borrowing, after giving effect to such Borrowing; and
(f) the fact that the representation and warranty contained in Section 4.4(b)
shall have been true as of the Closing Date.
Such Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(d), (e) and (f) of this Section.
24
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants that:
Section 4.1 Corporate Existence and Power. The Borrower (a) is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and (b) has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Section 4.2 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Borrower of this Agreement and the
Notes, if any, issued by the Borrower, are within its corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, conflict with, or constitute a default under any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Borrower or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrower or any of its Material Subsidiaries
or result in the creation or imposition of any Lien on any asset of the Borrower
or any of its Material Subsidiaries. Without limiting the generality of the
foregoing representation, the aggregate outstanding amount of the Loans
hereunder does not exceed any limitations on the aggregate amount of borrowings
that may be effected by the Borrower and its Subsidiaries set by the Borrower's
Board of Directors.
Section 4.3 Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower and each Note, if any, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable against the Borrower in accordance
with its respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 4.4 Financial Information. (a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December 31, 2003 and the
related consolidated statements of income, cash flows and stockholders' equity
for the fiscal year then ended, reported on by Deloitte & Touche LLP and
incorporated by reference in the Borrower's 2003 Form 10-K, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year. The
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of September 30, 2004 and the related consolidated statements of income, cash
flows and stockholders' equity for the three months then ended as reported in
the Borrower's September 30, 2004 Form 10-Q, a copy of which has been delivered
to each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such
25
date and their consolidated results of operations and cash flows for the three
month period ended on such date.
(b) Since December 31, 2003 there has been no material adverse change in the
business, financial position, results of operations or prospects of the Borrower
and its consolidated subsidiaries, considered as a whole, except as disclosed in
writing to the Banks prior to the execution and delivery of this Agreement by
any Bank, including pursuant to the Borrower's 2003 Form 10-K and the Borrower's
September 30, 2004 Form 10-Q, and except for any Specified Claim.
Section 4.5 Litigation. There is no action, suit or proceeding pending against,
or to the knowledge of the Borrower threatened against or affecting the Borrower
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable probability of an
adverse decision which would materially adversely affect (except as disclosed in
writing to the Banks prior to the execution and delivery of this Agreement by
any Bank, including pursuant to the Borrower's 2003 Form 10-K and the Borrower's
September 30, 2004 Form 10-Q, and except for any Specified Claim) the business,
consolidated financial condition or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity or enforceability of this Agreement
or the Notes, if any.
Section 4.6 Compliance with ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could reasonably be expected to result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.7 Taxes. The Borrower, and its Material Subsidiaries have filed all
material income tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns. The charges, accruals and reserves on
the books of the Borrower, and its respective Material Subsidiaries in respect
of taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
Section 4.8 Subsidiaries. Each of the Borrower's Material Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
26
Section 4.9 Regulatory Restrictions on Borrowing. The Borrower is not subject to
any regulatory scheme not applicable to corporations generally which restricts
its ability to incur debt or would render the Loans void or voidable.
Section 4.10 Full Disclosure. All material information (other than projections)
heretofore furnished by the Borrower to the Administrative Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Borrower to the
Administrative Agent or any Bank will be, true and accurate in all material
respects on the date as of which such information is stated or certified. All
projections, if any, that have been or will be prepared by the Borrower and made
available to the Administrative Agent or any Bank have been or will be prepared
in good faith based upon reasonable assumptions (it being understood that such
projections are subject to significant uncertainties and contingencies, many of
which are beyond the Borrower's control, and that no assurance can be given that
such projections will be realized). The Borrower has disclosed to the Banks in
writing any and all facts which materially adversely affect or may materially
adversely affect (to the extent it can now reasonably foresee) the business,
operations or financial condition of the Borrower, or the ability of the
Borrower to perform its obligations under this Agreement.
Section 4.11 Use of Credit. Not more than 25% of the value of the assets of the
Borrower (individually) and the Borrower and its Subsidiaries (determined on a
consolidated basis) that are subject to the restrictions in Sections 5.5 and 5.7
is attributable to Margin Stock.
ARTICLE 5
COVENANTS
---------
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder remains unpaid:
Section 5.1 Information. The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days after the end of each
fiscal year of the Borrower, (i) a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income, cash flows and stockholders' equity
for such fiscal year, setting forth in each case in comparative form the figures
as at the end of and for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by Deloitte & Touche LLP or
other independent public accountants of nationally recognized standing (it being
understood that delivery of the Borrower's annual report and Form 10-K for any
fiscal year as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, will satisfy this requirement with
respect to such fiscal year), and (ii) a consolidating balance sheet as of the
end of such fiscal year and the related consolidating income statement for such
fiscal year, in substantially the form attached hereto as Exhibit C, which
financial statements substantially represent the Consolidated financial
condition of and results of operations for each of the Guarantors and its
Consolidated Subsidiaries as of the end of and for such fiscal year, except as
indicated in Exhibit C, certified as to fairness of presentation,
27
generally accepted accounting principles and consistency (except with respect to
any changes made as a result of changes to generally accepted accounting
principles) by the chief financial officer, the treasurer or the chief
accounting officer of each of the Guarantors;
(b) as soon as available and in any event within 60 days after the end of each
of the first three quarters of each fiscal year of the Borrower, (i) a
consolidated balance sheet or equivalent statement of financial position of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter and the
related consolidated statements of income and cash flows for such quarter and
for the portion of the Borrower's fiscal year ended at the end of such quarter,
setting forth in the case of such statements of income and cash flows in
comparative form the figures for the corresponding quarter and the corresponding
portion of the Borrower's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency (except with respect to any changes made
as a result of changes to generally accepted accounting principles) by the chief
financial officer, the treasurer or the chief accounting officer of the Borrower
(it being understood that, delivery of the Borrower's quarterly report on Form
10-Q for any fiscal quarter as filed with the Securities and Exchange commission
pursuant to the Securities Exchange Act of 1934, as amended, will satisfy this
requirement with respect to such fiscal quarter and, if applicable, the portion
of the Borrower's fiscal year ended at the end of such quarter), and (ii) a
consolidating balance sheet as of the end of such quarter and the related
consolidating income statement for the portion of the fiscal year ended at the
end of such quarter, in substantially the form attached hereto as Exhibit C,
which financial statements substantially represent the Consolidated financial
condition of and results of operations for each of the Guarantors and its
Consolidated Subsidiaries as of the end of such fiscal quarter and for such
portion of the fiscal year, except as indicated in Exhibit C, certified as to
fairness of presentation, generally accepted accounting principles and
consistency (except with respect to any changes made as a result of changes to
generally accepted accounting principles) by the chief financial officer, the
treasurer or the chief accounting officer of each of the Guarantors;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, one or more certificates of the chief
financial officer, the treasurer or the chief accounting officer of the Borrower
(i) setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 5.4 and
5.7 on the date of such financial statements, (ii) setting forth in reasonable
detail the calculation of the Guaranty Coverage Percentages as of the last day
of the period covered by such financial statements, and (iii) stating whether
any Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a)(i) above, a statement of the firm of independent
public accountants which reported on such statements (i) whether anything has
come to its attention to cause them to believe that the Borrower was not in
compliance with any covenant or agreement contained in this Article 5 insofar as
such covenant or agreement pertains to accounting or auditing matters or that
any Event of Default under Article 6 which pertains to accounting or auditing
matters existed on the date of such financial statements (it being understood
that such firm may state in such statement that its examination of such
financial statements was not directed primarily
28
towards obtaining knowledge of any such non-compliance or Event of Default) and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default, a certificate of the chief
financial officer, the treasurer or the chief accounting officer of the Borrower
setting forth the details thereof and, the action which the Borrower is taking
or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the stockholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer, any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer, the treasurer or the chief accounting officer of the Borrower setting
forth details as to such occurrence and action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to take;
(i) promptly after any change in the Borrower's commercial paper rating by
Xxxxx'x or S&P (as defined in the Pricing Schedule), a notice thereof;
(j) promptly following any determination by the Borrower that the proceeds of
any Settlement Debt described in clause (b) of the definition thereof are no
longer expected by the Borrower in good faith to be used to pay Settlement
Costs, a notice thereof; and
29
(k) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Administrative
Agent, at the request of any Bank, may reasonably request.
In the case of information required to be delivered pursuant to clause 5.1(a),
5.1(b), 5.1(f) or 5.1(g) above, either (i) the Borrower shall deliver paper
copies of such information to each Bank, or (ii) such information shall be
deemed to have been delivered on the date on which the Borrower provides notice
to the Banks that such information has been posted on the Borrower's website on
the Internet at the website address listed on the signature pages hereof, at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and
accessible by the Banks without charge; provided that (x) such notice may be
included in a certificate delivered pursuant to clause 5.1(c) and (y) the
Borrower shall deliver paper copies of the information referred to in clause
5.1(a), 5.1(b), 5.1(f) or 5.1(g) to any Bank which requests such delivery.
Section 5.2 Conduct of Business and Maintenance of Existence. The Borrower will
continue, and will cause its Material Subsidiaries to continue, to engage in
business of the same general type as now conducted by the Borrower and its
Material Subsidiaries, and will not, and will not permit any of its Subsidiaries
to, engage in any business that is not of the same general type as now conducted
by the Borrower and its Subsidiaries or other businesses that are reasonably
related or incidental thereto or that, in the judgment of the board of directors
of the Borrower, are reasonably expected to materially enhance the other
businesses in which the Borrower and its Subsidiaries are engaged, and will
preserve, renew and keep in full force and effect, and will cause each such
Material Subsidiary to preserve, renew and keep in full force and effect, their
respective existence and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that nothing
in this Section 5.2 shall prohibit (i) the merger of a Subsidiary of the
Borrower into the Borrower or the merger or consolidation of a Subsidiary with
or into another Person if the corporation surviving such consolidation or merger
is a Subsidiary and if, in each case, after giving effect thereto, no Default
shall have occurred and be continuing, provided that this clause (i) shall not
permit (A) the merger of a Guarantor with or into any other Person unless the
Guarantor is the surviving entity, or (B) the merger of any Subsidiary of a
Guarantor with any Person other than such Guarantor, another Guarantor or a
Subsidiary of a Guarantor if any Guaranty Coverage Percentage would be less than
the Required Percentage immediately after such merger, (ii) the termination of
the corporate existence of any Material Subsidiary of the Borrower (other than a
Guarantor) if the Borrower, in good faith determines that such termination is
(A) in the best interest of the Borrower and (B) does not cause any Guaranty
Coverage Percentage to fall below the Required Percentage, and (iii) the
discontinuance of the business of any Material Subsidiary (other than a
Guarantor) if the Borrower in good faith determines that such discontinuance is
(A) in the best interest of the Borrower and (B) does not cause any Guaranty
Coverage Percentage to fall below the Required Percentage.
Section 5.3 Compliance with Laws; Borrowing Authorization. The Borrower will
comply, and cause each of its Material Subsidiaries to comply, in all material
respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws and ERISA and the rules and regulations thereunder) except
where (i) the necessity of compliance therewith is contested in good faith by
appropriate proceedings or (ii) non-compliance therewith would not have a
material adverse
30
effect upon the business, financial position, results of operations or prospects
of the Borrower and its Subsidiaries, considered as a whole. The Borrower will
not permit the aggregate outstanding amount of the Loans hereunder to exceed any
limitations on the aggregate amount of borrowings that may be effected by the
Borrower and its Subsidiaries set by the Borrower's Board of Directors.
Section 5.4 Financial Covenants
(a) Consolidated Leverage Ratio. The Borrower will maintain as of the last day
of each Measurement Period specified below a Consolidated Leverage Ratio of not
more than the amount set forth below opposite such Measurement Period:
----------------------------------------------- -----------------------
Measurement Period Ending Ratio
----------------------------------------------- -----------------------
December 31, 2004 3.25: 1.00
----------------------------------------------- -----------------------
March 31, 2005 3.25: 1.00
----------------------------------------------- -----------------------
June 30, 2005 3.50: 1.00
----------------------------------------------- -----------------------
September 30, 2005 3.50: 1.00
----------------------------------------------- -----------------------
December 31, 2005 3.50: 1.00
----------------------------------------------- -----------------------
March 31, 2006 3.50: 1.00
----------------------------------------------- -----------------------
June 30, 2006 3.25: 1.00
----------------------------------------------- -----------------------
September 30, 2006 3.00: 1.00
----------------------------------------------- -----------------------
(b) Consolidated Fixed Charge Coverage Ratio. The Borrower will maintain for
each Measurement Period set forth below a Consolidated Fixed Charge Coverage
Ratio of not less than the amount set forth below opposite such Measurement
Period:
----------------------------------------------- -----------------------
Measurement Period Ending Ratio
----------------------------------------------- -----------------------
December 31, 2004 2.25: 1.00
----------------------------------------------- -----------------------
March 31, 2005 2.25: 1.00
----------------------------------------------- -----------------------
June 30, 2005 2.25: 1.00
----------------------------------------------- -----------------------
September 30, 2005 2.25: 1.00
----------------------------------------------- -----------------------
December 31, 2005 2.25: 1.00
----------------------------------------------- -----------------------
31
----------------------------------------------- -----------------------
March 31, 2006 2.50: 1.00
----------------------------------------------- -----------------------
June 30, 2006 2.50: 1.00
----------------------------------------------- -----------------------
September 30, 2006 2.75: 1.00
----------------------------------------------- -----------------------
Section 5.5 Consolidations, Mergers and Sales of Assets. The Borrower will not
(i) consolidate or merge with or into any Person, (ii) sell, lease or otherwise
transfer all or substantially all of its assets to any other Person, or (iii)
sell, transfer or otherwise dispose of its interest in any Guarantor; provided
that (x) the Borrower may merge with any Wholly-Owned Consolidated Subsidiary
(other than a Guarantor or a Subsidiary of a Guarantor) if immediately after
such merger no Default shall have occurred and be continuing and such
Wholly-Owned Consolidated Subsidiary shall expressly assume in writing all of
the obligations of the Borrower hereunder, and under the Notes (if any), and (y)
the Borrower may merge with any other Person (other than a Guarantor or a
Subsidiary of a Guarantor) if (A) the Borrower is the corporation surviving such
merger and (B) immediately after giving effect to such merger, no Default shall
have occurred and be continuing. The Borrower will not permit (1) any Guarantor
to consolidate or merge with or into any other Person unless the Guarantor is
the surviving entity, (2) any Subsidiary of any Guarantor to consolidate or
merge with or into any other Person unless, immediately after giving effect to
such consolidation or merger, none of the Guaranty Coverage Percentages is less
than the Required Percentage, (3) any Guarantor to sell, lease or otherwise
transfer all or substantially all of its assets to any other Person, or (4) any
Subsidiary of any Guarantor to sell, lease or otherwise transfer all or
substantially all of its assets to another Person unless, immediately after
giving effect to such sale, lease or other transfer, none of the Guaranty
Coverage Percentages is less than the Required Percentage.
Section 5.6 Use of Proceeds. The proceeds of the Loans will be used only for
general corporate purposes of the Borrower and its Subsidiaries in the ordinary
course of business, provided that, the Borrower shall not be entitled to use the
proceeds of any Loans to acquire any Person by means of a "hostile acquisition".
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
Section 5.7 Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens on the Mortgaged Property to secure Debt under the Mortgage;
(b) Liens arising in the ordinary course of its business which (i) do not secure
Debt or Derivatives Obligations, (ii) do not secure, in the case of judgments or
orders, obligations in an aggregate amount exceeding $100,000,000 and (iii) do
not in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
32
(c) Liens on cash and cash equivalents securing Derivatives Obligations,
provided that the aggregate amount of cash and cash equivalents subject to such
Liens may at no time exceed $100,000,000 and provided further that the sum of
(x) such aggregate amount and (y) the aggregate amount of Debt secured as
permitted by clause (d) below does not at any date exceed $250,000,000; and
(d) Liens not otherwise permitted by the foregoing clauses of this Section
securing Debt or other obligations, provided that the sum of (x) the principal
or face amount of such Debt and other obligations and (y) the aggregate amount
of cash and cash equivalents referred to in clause (c) above does not at any
date exceed $250,000,000.
Section 5.8 Taxes, Etc. The Borrower will, and will cause each of its Material
Subsidiaries to:
(a) pay and discharge all taxes, assessments and governmental charges or levies
imposed on it or on its income or profits or on any of its property prior to the
date on which penalties attach thereto, except for any such tax, assessment,
charge or levy the payment of which is being contested in good faith and by
proper proceedings and against which adequate reserves are being maintained or
the nonpayment of which would not have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole;
(b) keep adequate records and books of account, in which complete entries will
be made in accordance with generally accepted accounting principles consistently
applied; and
(c) permit representatives of any Bank or the Administrative Agent, during
normal business hours, to examine, copy and make extracts from its books and
records, to inspect any of its properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by such Bank
or the Administrative Agent (as the case may be).
Section 5.9 Maintenance of Insurance. The Borrower will maintain, and cause each
of its Consolidated Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or
such Consolidated Subsidiary operates; provided that the Borrower and its
Subsidiaries may self-insure to the same extent as other companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates and to the extent consistent with
prudent business practice.
Section 5.10 Transactions with Affiliates. Anything contained herein to the
contrary notwithstanding, the Borrower will conduct, and cause each of its
Consolidated Subsidiaries to conduct, all transactions otherwise permitted under
this Agreement with any of their Affiliates (other than the Borrower and its
Subsidiaries) on terms that are fair and reasonable and no less favorable to the
Borrower or such Consolidated Subsidiary than it would obtain in a comparable
arm's length transaction with a Person not an Affiliate.
33
Section 5.11 Dispositions. The Borrower will not make any Disposition or permit
any Consolidated Subsidiary to make any Disposition, except:
(a) Dispositions of obsolete or worn out property or property no longer used in
the business of the Borrower or its Subsidiaries, whether now or hereafter owned
or leased, in the ordinary course of business of such Person;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions described on Schedule 5.11;
(d) Dispositions of property by any Subsidiary to the Borrower or to another
Subsidiary or by the Borrower to a Subsidiary, to the extent not otherwise
prohibited hereunder;
(e) Dispositions of assets that are being (or within 12 months will be) replaced
with other assets used in the same business; and
(f) any other Disposition, provided that (i) after giving effect to such
Disposition, none of the Guaranty Coverage Percentages is less than the Required
Percentage, and (ii) such Disposition is not otherwise prohibited by the terms
hereof.
Section 5.12 Debt. The Borrower will not permit any Consolidated Subsidiary to
create, incur, assume or suffer to exist any Debt, except:
(a) (i) Debt under the Loan Documents and (ii) Debt consisting of guaranties of
Debt of the Borrower under the "Loan Documents" as defined in each of the
Revolving Credit Agreements (which shall include, for this purpose, any renewal
or refinancing thereof), provided that in each case the aggregate amount of such
Debt of the Borrower so guaranteed under the "Loan Documents" in respect of any
Revolving Credit Agreement does not exceed the aggregate amount of the
"Commitments" (as defined in such Revolving Credit Agreement as in effect on the
Closing Date) under such Revolving Credit Agreement as of the Closing Date;
(b) Debt under the Mortgage;
(c) Debt owed to a Person of which such Subsidiary is a Subsidiary;
(d) Debt of any Consolidated Subsidiary existing as of the Closing Date (other
than Debt described in clause (a) above), and any renewal and refinancing
thereof, provided that the principal amount thereof is not increased and no
other Subsidiary becomes obligated in respect thereof (except that (i) the
Borrower or any Subsidiary may become obligated in respect of any such Debt of
any of their respective Subsidiaries, (ii) any Guarantor and any of its
Subsidiaries may become obligated in respect of any such Debt of such Guarantor
or any of its Subsidiaries, and (iii) any Subsidiary which is neither a
Guarantor nor a Subsidiary of a Guarantor may become obligated in respect of any
such Debt);
(e) Debt incurred by Foreign Subsidiaries to finance the payment (and not in
excess of) of cash dividends to reinvest foreign earnings in the United States,
as contemplated and to the extent permitted by the American Jobs Creation Act of
2004, as a source for, but not
34
limited to, the financial stabilization of the Borrower and its Domestic
Subsidiaries for the purposes of jobs retention or creation; and
(f) other Debt in an aggregate amount for all Consolidated Subsidiaries not to
exceed $500,000,000 outstanding at any time.
Section 5.13 Acquisitions. The Borrower will not make, or permit any of its
Subsidiaries to make, any Acquisition, unless, (a) after giving effect to such
Acquisition, no Default shall have occurred or be continuing or would result
from such Acquisition, and (b) after giving effect to such Acquisition, the
Borrower would be in pro forma compliance with Section 5.4 hereof as of the most
recently ended fiscal quarter for which financial statements have been delivered
under Section 5.1(a) or (b).
Section 5.14 Guarantors. The Borrower shall cause each of the Guarantors to (a)
preserve its separate existence as required by Section 5.2, (b) comply in all
material respects with the requirements of its organizational documents and
other governing instruments (including bylaws), (c) not conduct business under
the name of the Borrower or any other Guarantor, (d) maintain separate and
complete books and records in accordance with generally acceptable accounting
principles and otherwise to properly reflect its business and financial affairs,
(e) maintain full and complete records of all transactions with other
Subsidiaries of the Guarantor, and (f) maintain its own bank accounts and not
commingle any of its funds with any other Person.
Section 5.15 Guaranty Coverage Percentage. If, at the end of any fiscal quarter
or fiscal year, any Guaranty Coverage Percentage is less than the Required
Percentage, the Borrower shall, within 30 days after the delivery of the
certificate pursuant to Section 5.1(c)(ii) setting forth the Guaranty Coverage
Percentages as of the end of such fiscal quarter or year, deliver to the
Administrative Agent one or more additional Subsidiary Guaranties from one or
more additional Guarantors such that each Guaranty Coverage Percentage as of the
end of such quarter, on a pro forma basis taking into account such additional
Subsidiary Guaranties, is not less than the Required Percentage.
ARTICLE 6
Events of DEFAULTS
------------------
Section 6.1 Events of Default. If one or more of the following events ("Events
of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay (x) any principal of any Loan when due or (y)
within five days of the date when due any interest, any fees or any other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant contained in
Sections 5.4 through 5.7, inclusive, 5.10 through 5.13, inclusive and 5.15;
(c) the Borrower or any Guarantor shall fail to observe or perform any covenant
or agreement contained in this Agreement or any Subsidiary Guaranty to which it
is a
35
party (other than those covered by clause (a) or (b) above) for 10 days (or, in
the case of Section 5.1(a)(ii), 5.1(b)(ii), 5.1(c)(ii) or 5.14, 30 days) after
written notice thereof has been given to the Borrower by the Administrative
Agent or any Bank (through the Administrative Agent);
(d) any representation, warranty, certification or statement made (or deemed
made) by the Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant to Section 5.1 of this Agreement
shall prove to have been incorrect in any material respect when made (or deemed
made); or any representation, warranty, certification or statement made (or
deemed made) by any Guarantor in the Subsidiary Guaranty to which it is a party
or in any certificate, financial statement or other document delivered pursuant
to Section 5.1 of this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(e) either the Borrower or any Subsidiary thereof shall fail to make any payment
in respect of any Material Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the acceleration of the
maturity of any Material Financial Obligations or enables (or, with the giving
of notice or lapse of time or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Subsidiary holding, as of the date of the most recent
audited financial statements of the Borrower and its Consolidated Subsidiaries
delivered pursuant to this Agreement, assets having a book value in excess of
$20,000,000, shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary holding, as of the date of the most recent audited
financial statements of the Borrower and its Consolidated Subsidiaries delivered
pursuant to this Agreement, assets having a book value in excess of $20,000,000
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against the
Borrower or any Subsidiary holding, as of the date of the most recent audited
financial statements of the Borrower and its Consolidated Subsidiaries delivered
pursuant to this Agreement, assets having a book value in excess of $20,000,000
under the federal bankruptcy laws as now or hereafter in effect;
36
(i) any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $20,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA 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 Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could reasonably be expected to cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $30,000,000;
(j) judgments or orders for the payment of money in excess of $100,000,000 shall
be rendered against the Borrower or any Subsidiary thereof and such judgments or
orders shall continue unsatisfied and unstayed for a period of 30 days; or
(k) any person or group of persons (within the meaning of Section 13 or 14 of
the Securities Exchange Act of 1934, as amended) other than the Borrower, any
trustee or other fiduciary holding securities under an employee benefit plan of
the Borrower or any corporation owned, directly or indirectly, by the
stockholders of the Borrower in substantially the same proportions as their
ownership of stock in the Borrower, shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of 50% or more of the combined voting power of the
Borrower's then outstanding equity securities; or, during any period of 24
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period and any new director whose election by the board of
directors of the Borrower or nomination for election by the Borrower's
stockholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such period or
whose election or nomination for election was previously so approved, shall
cease to constitute a majority of the board of directors of the Borrower; or
(l) any provision of any Guaranty or any other Loan Document after delivery
thereof pursuant to this Agreement shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such Loan
Party shall so state in writing;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Borrower terminate the Commitments and they shall thereupon terminate,
and (ii) if requested by Banks holding more than 50% of the aggregate principal
amount of the Loans, by notice to the Borrower declare the Loans (together with
accrued interest thereon) and all other amounts payable by the Borrower
hereunder and under any Notes (including, without limitation, any amounts
payable under Section 2.13) to be, and the Loans, such interest and such other
amounts shall thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that in the case of any of the Events of
Default specified in clause (g) or (h) above with respect to the Borrower,
without any notice to the Borrower or any other act by the Administrative Agent
or the Banks,
37
the Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) and all other amounts payable by the Borrower hereunder and
under any Notes (including, without limitation, any amounts payable under
Section 2.13) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE 7
THE ADMINISTRATIVE AGENT
------------------------
Section 7.1 Appointment and Authorization. Each Bank irrevocably appoints and
authorizes Citibank to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
Section 7.2 Administrative Agent and Affiliates. Citibank shall have the same
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Administrative Agent,
and Citibank and its affiliates may accept deposits from, lend money to, make
investments in and generally engage in any kind of business with the Borrower or
any Subsidiary or affiliate of the Borrower as if it were not the Administrative
Agent and Citibank and its affiliates may accept fees and other consideration
from the Borrower for services in connection with this Agreement or otherwise
without having to account for the same to the Banks. Except with respect to
information furnished to the Administrative Agent pursuant to this Agreement,
the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by Citibank or any
of its Affiliates in any capacity.
Section 7.3 Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein, and
the Administrative Agent shall not by reason of this Agreement be a trustee for
any Bank. Without limiting the generality of the foregoing, the Administrative
Agent shall not be required to take any action with respect to any Default,
except as expressly provided in Article 6.
Section 7.4 Consultation with Experts; Sub-Agent. The Administrative Agent may
consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
contained in this Article 7 shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
38
Section 7.5 Liability of Administrative Agent. Neither the Administrative Agent
nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required Banks
(or each Bank, if applicable) or (ii) in the absence of its own gross negligence
or willful misconduct. Neither the Administrative Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(i) any statement, warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of the Borrower or any Guarantor; (iii) the
satisfaction of any condition specified in Article 3, except receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Notes or any other instrument or writing furnished in connection herewith. The
Administrative Agent shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex, facsimile transmission or similar writing) reasonably believed
by it to be genuine or to be signed by the proper party or parties.
Section 7.6 Indemnification. Each Bank shall, ratably in accordance with its
Commitment (and, after the Commitments have been terminated, ratably in
accordance with the aggregate principal amount of the Loans held by such Bank),
indemnify the Administrative Agent, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, judgment, suit, loss or liability (except
such as result from such indemnitee's gross negligence or willful misconduct)
that such indemnitees may suffer or incur in connection with this Agreement or
any action taken or omitted by such indemnitees hereunder.
Section 7.7 Credit Decision. Each Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, 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 any action under this Agreement.
Section 7.8 Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Banks and the Borrower. Upon
any such resignation, the Required Banks shall have the right to appoint a
successor Administrative Agent, subject, so long as no Event of Default shall be
continuing, to the approval of such successor Administrative Agent by the
Borrower. If no successor Administrative Agent shall have been so appointed by
the Required Banks and approved by the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$100,000,000 and which is reasonably acceptable to the Borrower. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor
39
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
Section 7.9 Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the Administrative Agent. Such
fees once paid shall be non-refundable.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
-----------------------
Section 8.1 Basis for Determining Interest Rate Inadequate or Unfair. If on or
prior to the first day of any Interest Period for any Euro-Dollar Loan:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits referred
to in the definition of "London Interbank Offered Rate" in Section 2.7 are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Fixed Rate Loans as provided
herein; or (b) Banks having 50% or more of the aggregate amount of the
Commitments advise the Administrative Agent that the Adjusted London Interbank
Offered Rate as determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Banks of funding their Euro-Dollar Loans for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make, Continue or Convert into Euro-Dollar Loans
shall be suspended. During any such suspension unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow, Continue or Convert, as the case may be, on such
date, such Borrowing shall instead be made or Continued as, or Converted into, a
Base Rate Borrowing.
Section 8.2 Illegality. If, after the date of this Agreement, the adoption of
any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for any Bank (or its Euro-Dollar
Lending Office) to make, maintain, fund, Continue or Convert into Euro-Dollar
Loans and such Bank shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the
40
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make, Continue or
Convert into Euro-Dollar Loans shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section 8.2, such Bank shall designate
a different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
Convert the then outstanding principal amount of each such Euro-Dollar Loan of
such Bank into a Base Rate Loan from such Bank in an equal principal amount (on
which Loan interest and principal shall be payable contemporaneously with the
related Euro-Dollar Loans of the other Banks).
Section 8.3 Increased Cost and Reduced Return. (a) If after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with respect to any
Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
Bank (or its Applicable Lending Office) or the London interbank market any other
condition affecting its Fixed Rate Loans, any Note that relates to Fixed Rate
Loans or its obligation to make, Continue or Convert into Fixed Rate Loans and
the result of any of the foregoing is to increase the cost to such Bank (or its
Applicable Lending Office) of making, maintaining, Continuing or Converting into
any Fixed Rate Loan, or to reduce the amount of any sum received or receivable
by such Bank (or its Applicable Lending Office) under this Agreement or under
any Note that relates to Fixed Rate Loans, by an amount deemed by such Bank to
be material, then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower agrees to pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction which arise out of its Loans or any Notes.
(b) If any Bank shall have determined that, after the date hereof, the adoption
of any applicable law, rule or regulation regarding capital adequacy, or any
change in any such law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on capital of such Bank (or
its Parent) as a consequence of such Bank's obligations hereunder to a level
below that which such Bank (or its Parent) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within 15 days after demand by such Bank (with
a copy to
41
the Administrative Agent), the Borrower agrees to pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for
the portion of such reduction attributable to its Loans or any Notes.
(c) Each Bank will promptly notify the Borrower and the Administrative Agent of
any event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 8.3 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section 8.3 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
Section 8.4 Taxes. (a) For the purposes of this Section 8.4, the following terms
have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any payment
by the Borrower pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank and the
Administrative Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located and (ii) in the case of each Bank, (x) any
United States withholding tax imposed on such payments but only to the extent
that such Bank is subject to United States withholding tax at the time such Bank
first becomes a party to this Agreement or (y) any United States withholding tax
imposed on such payment solely as a result of a change in such Bank's Applicable
Lending Office made other than pursuant to Section 8.2, 8.3 or 8.4(f).
"Other Taxes" means any present or future stamp, mortgage
recording or documentary taxes and any other excise or property taxes, or
similar charges or levies, which arise from any payment made pursuant to this
Agreement or under any Note or from the execution or delivery of, the
enforcement of, or otherwise with respect to, this Agreement or any Note.
(b) Any and all payments by the Borrower to or for account of any Bank or the
Administrative Agent hereunder or under any Note shall be made without deduction
for any Taxes or Other Taxes; provided that, if the Borrower shall be required
by law to deduct any Taxes or Other Taxes from any such payments, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.4) such Bank or the Administrative 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, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address
42
referred to in Section 9.1, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Administrative Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.4) paid by such Bank or the Administrative Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be paid
within 15 days after such Bank or the Administrative Agent (as the case may be)
makes demand therefor.
(d) Each Bank 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 Bank listed on the signature pages hereof and on or prior to
the date on which it becomes a Bank in the case of each other Bank, and as
required thereafter if requested in writing by the Borrower (but only so long as
such Bank remains lawfully able to do so), shall provide the Borrower with
Internal Revenue Service Form W-8BEN or W-8IMY or W-8ECI, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts such Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank required to do so has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.4(b) or (c) with respect to Taxes imposed by the United States; provided that
if a Bank, which is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to Taxes because of its failure, if required,
to deliver a form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the account
of any Bank pursuant to this Section 8.4, then such Bank will change the
jurisdiction of its Applicable Lending Office if, in the judgment of such Bank,
such change (i) will eliminate or reduce any such additional payment which may
thereafter accrue and (ii) is not otherwise disadvantageous to such Bank.
Section 8.5 Base Rate Loans Substituted for Affected Euro-Dollar Loans. If (i)
the obligation of any Bank to make, Continue or Convert into Euro-Dollar Loans
has been suspended pursuant to Section 8.2 or (ii) any Bank has demanded
compensation under Section 8.3(a) or 8.4 with respect to its Euro-Dollar Loans
and the Borrower shall, by at least five Euro-Dollar Business Days' prior notice
to such Bank through the Administrative Agent, have elected that the provisions
of this Section 8.5 shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such suspension or
demand for compensation no longer exist:
43
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar Loans
shall be made instead as Base Rate Loans (on which interest and principal shall
be payable contemporaneously with the related Euro-Dollar Loans of the other
Banks); and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
ARTICLE 9
MISCELLANEOUS
-------------
Section 9.1 Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given to such party: (a) in the case of the Borrower or
the Administrative Agent, at its address or facsimile number set forth on the
signature pages hereof, (b) in the case of any Bank, at its address or facsimile
number set forth in its Administrative Questionnaire or (c) in the case of any
party, such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Borrower.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section 9.1 and confirmation of receipt is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section 9.1; provided that
notices to the Administrative Agent under Article 2 or Article 8 shall not be
effective until received.
Notices and other communications to the Banks hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article 2 or any notices related to Borrowings, payments or
repayments unless otherwise agreed by the Administrative Agent and the
applicable Bank. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
Section 9.2 No Waivers. No failure or delay by the Administrative Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.3 Expenses; Indemnification; Damage Waiver. (a) The Borrower agrees to
pay (i) all out-of-pocket expenses of the Administrative Agent, including fees
and disbursements of special counsel for the Administrative Agent, in connection
with the preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Administrative Agent and each Bank, including (without duplication)
44
the fees and disbursements of outside counsel and the allocated cost of inside
counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
(c) To the extent permitted by applicable law, the Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, any Loan or the
use of the proceeds thereof.
Section 9.4 Sharing of Set-Offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise (other than a
repayment or prepayment by the Borrower made in accordance with its obligations
hereunder), receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Loan made by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loan made by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section 9.4 shall impair the right
of any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness hereunder. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Loan, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
Section 9.5 Amendments and Waivers. Any provision of this Agreement or any other
Loan Document may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed by the Borrower and the Required Banks (or the
Administrative Agent with the consent of the Required Banks) (and, if the rights
or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that (a) no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all Banks) or subject
any Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan, or any fees
45
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan, or any fees hereunder or for the termination of the
Commitments, (iv) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Banks, which shall be
required for the Banks or any of them to take any action under this Section 9.5
or any other provision of this Agreement, (v) amend or modify Sections 2.15, 9.4
and 9.6(a) or (vi) reduce or limit the obligations of any Guarantor under
Section 1 of the Subsidiary Guaranty to which it is a party or release any such
Subsidiary Guaranty, and (b) any modification or supplement of Article 7 shall
require the consent of the Administrative Agent.
Anything in this Agreement to the contrary notwithstanding, if at
a time when the conditions precedent set forth in Article 3 to make any
Committed Loan hereunder are, in the reasonable opinion of the Required Banks,
satisfied, any Bank shall fail to fulfill its obligations to make such Loan
then, for so long as such failure shall continue, such Bank shall (unless the
Required Banks, determined as if such Bank were not a "Bank" hereunder, shall
otherwise consent in writing) be deemed for all purposes relating to amendments,
modifications, waivers or consents under this Agreement (including, without
limitation, under this Section 9.5) to have no Loans or Commitments, shall not
be treated as a "Bank" hereunder when performing the computation of Required
Banks and shall have no rights under the preceding paragraph of this Section
9.5; provided that any action taken by the other Banks with respect to the
matters referred to in clause (a) of the preceding paragraph shall not be
effective as against such Bank.
Section 9.6 Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations under this Agreement without
the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other institutions
(each a "Participant") participating interests in its Commitment or any or all
of its Loans. In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Bank shall remain responsible for the performance of
its obligations hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and any Note. Any agreement
pursuant to which any Bank may grant such a participating interest shall provide
that such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 9.5 without the consent of the
Participant. The Borrower agrees, subject to subsection (e) below, that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other institutions
(each an "Assignee"), all, or a proportionate part (equivalent to an initial
46
Commitment of not less than $10,000,000 and increments of $1,000,000 in excess
thereof) of all, of its rights and obligations under this Agreement and any Note
and the other Loan Documents, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially
the form of Exhibit A hereto executed by such Assignee and such transferor Bank,
with (and subject to) the prior written consent of the Borrower, which shall not
be unreasonably withheld and the Administrative Agent, which shall not be
unreasonably withheld, provided that, so long as an Event of Default shall be
continuing, no such consent shall be required of the Borrower; provided further
that if an Assignee is an affiliate of such transferor Bank or was a Bank
immediately prior to such assignment, no such consent shall be required of the
Borrower. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to the
Assignee. In connection with any such assignment, the transferor Bank shall pay
to the Administrative Agent an administrative fee for processing such assignment
in the amount of $3,500. If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall deliver to the
Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.4.
Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Administrative Agent and the Borrower the option to fund all or any part of
any Loan that such Granting Bank would otherwise be obligated to fund pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise
such option or otherwise fails to fund all or any part of such Loan, the
Granting Bank shall be obligated to fund such Loan pursuant to the terms hereof
and (iii) the Borrower may bring any proceeding against the Granting Bank or the
SPC in order to enforce any rights of the Borrower hereunder. The funding of a
Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to
the same extent, and as if, such Loan were funded by such Granting Bank. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
payment under this Agreement for which a Bank would otherwise be liable for so
long as, and to the extent, the Granting Bank provides such indemnity or makes
such payment. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee to such SPC. This paragraph
may not be amended without the prior written consent of each Granting Bank, all
or any part of whose Loan is being funded by an SPC at the time of such
amendment.
(d) Any Bank may (without notice to the Borrower, the Administrative Agent or
any other Bank and without payment of any fee) at any time assign or pledge all
or any portion of its rights under this Agreement and its Note (if any) to a
Federal Reserve Bank as
47
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.
(e) No Assignee, Participant, SPC or other transferee of any Bank's rights shall
be entitled to receive any greater payment under Section 8.3 or 8.4 than such
Bank would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such Bank to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such greater payment did not
exist.
Section 9.7 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the law of the State of New York.
The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
State court sitting in New York City for purposes of all legal proceedings
arising out of or relating to this Agreement, any Note or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 9.8 Counterparts; Integration; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement and any Notes issued hereunder (and the Master
Agreement and the Subsidiary Guaranties) constitute the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Administrative
Agent of counterparts hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart shall not have been
received, receipt by the Administrative Agent in form satisfactory to it of a
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
Section 9.9 Waiver Of Jury Trial. THE BORROWER AND EACH OF THE ADMINISTRATIVE
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY NOTE, the other Loan Documents
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.10 Survival. The obligations of the Borrower under Sections 2.13, 8.3,
8.4 and 9.3, and the obligations of the Banks under Section 7.6 shall survive
the repayment of the Loans and the termination of the Commitments.
Section 9.11 Confidentiality. Each of the Administrative Agent and the Banks
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may
48
be disclosed (a) to its and its Affiliates' directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any Note or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section and to the consent of the
Borrower, such consent not to be unreasonably withheld, to any Assignee of or
Participant in, or any prospective Assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the
Borrower, (h) if an Event of Default shall have occurred and be continuing, to
prospective assignees of any Bank who agree to hold such information
confidential, or (i) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section by another party
hereto or (ii) becomes available to the Administrative Agent or any Bank on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent or any Bank on a nonconfidential basis
prior to disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. It
is understood that for purposes of this Section, the Borrower and its business
shall include all of the Subsidiaries of the Borrower and all of the businesses
they engage in.
Section 9.12 USA Patriot Act. Each Bank hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (title III of Pub.L.107-56
(signed into law October 26, 2001))(the "Act"), it is required to obtain, verify
and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow such
Bank to identify the Borrower in accordance with the Act.
Section 9.13 Master Agreement. Each Bank hereby consents to the execution and
delivery of the Master Agreement by the Administrative Agent and agrees to be
bound by the terms and provisions thereof.
* * *
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXX & XxXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
By: Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile number: (000) 000-0000
Website: xxx.xxx.xxx
Taxpayer Identification No.: 00-0000000
LENDERS
Citibank, N.A., as Lender and
Administrative Agent
By:
------------------------------
Name:
Title:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Bank Loan Syndications
BANK OF AMERICA, N.A.
By:
------------------------------
Name:
Title:
Deutsche Bank AG New York Branch
By:
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
UBS LOAN FINANCE LLC
By:
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
XXXXXXX XXXXX BANK USA
By:
------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS
L.P.
By:
------------------------------
Name:
Title:
THE BANK NOVA SCOTIA
By:
------------------------------
Name:
Title:
XXXXXX XXXXXXX BANK
By:
------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
------------------------------
Name:
Title:
LLOYDS TSB BANK PLC
By:
------------------------------
Name:
Title:
NATIONAL AUSTRALIA BANK
LIMITED
By:
------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
------------------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By:
------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
------------------------------
Name:
Title:
COMMITMENT SCHEDULE
Initial Lenders Commitments
--------------- -----------
Administrative Agent
Citibank, N.A. $150,000,000.00
Syndication Agents
Bank of America, N.A. $150,000,000.00
Deutsche Bank AG New York Branch $150,000,000.00
Documentation Agent
UBS Loan Finance LLC $150,000,000.00
Xxxxxxx Xxxxx Bank USA $130,000,000.00
Xxxxxxx Sachs Credit Partners L.P. $105,000,000.00
The Bank of Nova Scotia $87,500,000.00
Xxxxxx Xxxxxxx Bank $87,500,000.00
ABN AMRO Bank N.V. $75,000,000.00
Lloyds TSB Bank plc $50,000,000.00
National Australia Bank Limited $50,000,000.00
Xxxxx Fargo Bank N.A. $45,000,000.00
The Northern Trust Company $30,000,000.00
Australia and New Zealand Banking Group $25,000,000.00
Limited
Barclays Bank plc $15,000,000.00
$1,300,000,000.00
PRICING SCHEDULE
The "Euro-Dollar Margin" means, for any day, the rates set forth below
(presented in basis points) in the column corresponding to the "Pricing Level"
that exists on such day:
================================================================================
LEVEL I LEVEL II LEVEL III
================================================================================
Applicable 100.0 125.0 150.0
Margin for
Eurodollar
Rate Advances
--------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"Base Rate Margin" means 0% per annum.
"Level I Pricing" applies at any date if, at such date, (a) the
Borrower's long-term senior unsecured debt is rated at least BBB by S&P or Baa2
by Moody's,* or (b) the Consolidated Leverage Ratio, as shown in the most recent
financial statements delivered pursuant to Section 5.1(a) or (b), is less than
2.25.
"Level II Pricing" applies at any date if, at such date, Level I Pricing
does not apply and (a) the Borrower's long-term senior unsecured debt is rated
at least BBB- by S&P and Baa3 by Moody's, or (b) the Consolidated Leverage
Ratio, as shown in the most recent financial statements delivered pursuant to
Section 5.1(a) or (b), is less than 2.50.
"Level III Pricing" applies at any date if, at such date, neither Level
I Pricing nor Level II Pricing applies.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I, Level
II, or Level III applies at any date.
"S&P" means Standard & Poor's Ratings Services.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to long term senior unsecured debt of the Borrower without third-party
credit enhancement, and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
------------------------
* In the event of a split rating of greater than one sub-grade, the rating shall
be deemed to be one level higher than the lower of the two ratings.
