U.S. $24,000,000,000 REVOLVING CREDIT AGREEMENT Dated as of July 27, 2005, as amended as of July 30, 2006 and as further amended as of December 7, 2006, among PROCTER & GAMBLE INTERNATIONAL S.A.R.L. AND THE ADDITIONAL BORROWERS (AS DEFINED HEREIN) as...
AMENDMENT
TO REVOLVING CREDIT AGREEMENT
As
of December 7,
2006
Reference
is made
to the Revolving Credit Agreement dated as of July 27, 2005 (as amended
as of
July 30, 2006 and as may be further amended, supplemented or otherwise
modified
prior to the date hereof, the “Credit
Agreement”)
among Procter
& Xxxxxx International S.A.R.L., a société
à
responsabilité limitée
organized under
the laws of the Grand Duchy of Luxembourg (the “Initial
Borrower”),
the Additional
Borrowers party thereto, the Lenders party thereto, Citibank, N.A., as
administrative agent for such Lenders (the “Agent”),
Citigroup
Global Markets Inc., as sole lead arranger and sole book runner, JPMorgan
Chase
Bank, N.A., as syndication agent, and ABN Amro Bank N.V. and Deutsche
Bank
Securities Inc., as co-documentation agents. Capitalized terms not otherwise
defined in this Amendment shall have the same meanings as specified therefor
in
the Credit Agreement.
PRELIMINARY
STATEMENTS
The
Lenders have
agreed to make and have made loans and other extensions of credit to
the
Borrowers under the Credit Agreement. The Initial Borrower has requested
and,
upon this Amendment becoming effective, the Lenders will have agreed,
that
certain provisions of the Credit Agreement be amended and otherwise modified
in
the manner provided for herein.
NOW
THEREFORE,
in consideration
of the premises and mutual covenants contained herein, and for other
valuable
consideration the receipt of which is hereby acknowledged, the parties
hereto
hereby agree as follows:
SECTION
1.
Amendment
To The
Credit Agreement.
As of the
Amendment Effective Date (as hereinafter defined), the Credit Agreement
shall be
amended and restated in its entirety in the form of Exhibit A
hereto.
SECTION
2.
Conditions
Precedent.
This Amendment
shall become effective as of the first date (the “Amendment
Effective Date”)
on which the
Borrowers, the Required Lenders and the Agent shall have executed this
Amendment.
SECTION
3. Reference
To And
Effect On The Loan Documents.
On and after the
Amendment Effective Date, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof” or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement,
as
amended and otherwise modified hereby. Except as amended or waived herein,
all
of the provisions of the Credit Agreement and the other Loan Documents
are and
shall remain in full force and effect in accordance with the terms thereof
and
are hereby in all respects ratified and confirmed.
SECTION
4. Execution
in
Counterparts.
This Amendment
may be executed by one or more of the parties hereto in any number of
separate
counterparts and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument. Delivery of an executed signature
page
of this Amendment by facsimile transmission shall be effective as delivery
of a
manually executed counterpart hereof. A set of the copies of this Amendment
signed by all the parties shall be lodged with the Initial Borrower and
the
Administrative Agent.
SECTION
5. GOVERNING
LAW.
THIS AMENDMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW
YORK.
[signature
pages follow]
IN
WITNESS WHEREOF,
the parties hereto have caused this Amendment to be duly executed and
delivered
by their respective duly authorized officers as of the day and year first
above
written.
PROCTER
&
XXXXXX INTERNATIONAL S.A.R.L.,
as
the Initial
Borrower
By___________________________________________
Name:
Title:
PROCTER
&
XXXXXX HOLDING (HK) LIMITED,
as
a
Borrower
By___________________________________________
Name:
Title:
PROCTER
&
XXXXXX INTERNATIONAL
OPERATION
S.A.,
as
a
Borrower
By___________________________________________
Name:
Title:
CITIBANK,
N.A., as
Agent and Lender
By___________________________________________
Name:
Title:
ABN
AMRO BANK N.V.,
as
Lender
By___________________________________________
Name:
Title:
HSBC
BANK USA,
as
Lender
By___________________________________________
Name:
Title:
JPMORGAN
CHASE
BANK, N.A., as
Lender
By___________________________________________
Name:
Title:
XXXXXXX
XXXXX
CAPITAL CORP., as
Lender
By___________________________________________
Name:
Title:
XXXXXX
XXXXXXX
BANK, as
Lender
By___________________________________________
Name:
Title:
XXXXXX
XXXXXXX
SENIOR FUNDING, INC., as
Lender
By___________________________________________
Name:
Title:
XXXXXXX
SACHS
CREDIT PARTNERS L.P., as
Lender
By___________________________________________
Name:
Title:
EXHIBIT
A - FORM
OF
AMENDMENT
AND
RESTATEMENT
EXECUTION
COPY
U.S.
$24,000,000,000
Dated
as of July
27, 2005,
as
amended as of
July 30, 2006 and as further amended as of December 7, 2006,
among
PROCTER
& XXXXXX INTERNATIONAL S.A.R.L.
AND
THE
ADDITIONAL BORROWERS (AS DEFINED HEREIN)
as
the
Borrowers
and
THE
LENDERS
PARTY HERETO
as
Lenders
and
CITIBANK,
N.A.
as
Administrative
Agent
and
CITIGROUP
GLOBAL MARKETS INC.
as
Sole Lead
Arranger and Sole Book Runner
and
JPMORGAN
CHASE BANK, N.A.
as
Syndication
Agent
and
ABN
AMRO
BANK N.V. AND DEUTSCHE BANK SECURITIES INC.
as
Co-Documentation Agents
TABLE
OF
CONTENTS
Page
SECTION
1.01 Certain
Defined
Terms
SECTION
1.02 Computation
of Time
Periods
SECTION
1.03 Accounting
Terms
ARTICLE
II AMOUNTS
AND TERMS
OF THE ADVANCES
SECTION
2.01 The
Revolving
Credit Advances and Reallocation between Facilities
SECTION
2.02 Making
the
Revolving Credit Advances
SECTION
2.03 Competitive
Bid
Facility
SECTION
2.04 Facility
Fees
SECTION
2.05 Termination
or
Reduction of the Commitments
SECTION
2.06 Repayment
of
Advances
SECTION
2.07 Interest
on
Revolving Credit Advances
SECTION
2.08 Interest
Rate
Determination
SECTION
2.09 Optional
Conversion
of Advances
SECTION
2.10 Prepayments
SECTION
2.11 Increased
Costs
SECTION
2.12 Illegality
SECTION
2.13 Payments
and
Computations
SECTION
2.14 Taxes
SECTION
2.15 Sharing
of
Payments, Etc.
SECTION
2.16 Use
of
Proceeds
SECTION
2.17 Evidence
of
Debt
SECTION
2.18 Call
Right of
Affiliates
SECTION
2.19 Put
Right of
Affiliates
ARTICLE
III CONDITIONS
TO
EFFECTIVENESS AND LENDING
SECTION
3.01 Conditions
Precedent to Initial Borrowing
SECTION
3.02 Conditions
Precedent to Each Borrowing
SECTION
3.03 Determinations
Under Section 3.01
ARTICLE
IV REPRESENTATIONS
AND
WARRANTIES
SECTION
4.01 Representations
and
Warranties of the Borrowers
ARTICLE
V COVENANTS
OF THE
BORROWERS
SECTION
5.01 Affirmative
Covenants
-
i -
SECTION
5.02 Negative
Covenants
ARTICLE
VI EVENTS
OF
DEFAULT
SECTION
6.01 Events
of
Default
SECTION
6.02 Remedies
ARTICLE
VII THE
AGENT
SECTION
7.01 Authorization
and
Action
SECTION
7.02 Agent’s
Reliance,
Etc.
SECTION
7.03 Citibank
and
Affiliates
SECTION
7.04 Lender
Credit
Decision
SECTION
7.05 Indemnification
SECTION
7.06 Successor
Agent
SECTION
7.07 Sub-Agent
SECTION
7.08 Other
Agents
ARTICLE
VIII MISCELLANEOUS
SECTION
8.01 Amendments,
Etc.
SECTION
8.02 Notices,
Etc.
SECTION
8.03 No
Waiver;
Remedies
SECTION
8.04 Costs
and
Expenses
SECTION
8.05 Right
of
Set-off
SECTION
8.06 Binding
Effect
SECTION
8.07 Assignments
and
Participations
SECTION
8.08 Confidentiality
SECTION
8.09 Judgment
Currency
SECTION
8.10 Additional
Borrowers; Assumption of Advances
SECTION
8.11 Governing
Law
SECTION
8.12 Jurisdiction
SECTION
8.13 Execution
in
Counterparts
SECTION
8.14 Waiver
of Jury
Trial
SECTION
8.15 Patriot
Act
-
ii -
Schedules
Schedule
I - List
of Applicable
Lending Offices
Schedule
II - Commitments
Exhibits
|
Exhibit
A-1
|
-
|
Form
of
Notice of Revolving Credit
Borrowing
|
|
Exhibit
A-2
|
-
|
Form
of
Notice of Competitive Bid Borrowing
|
|
Exhibit
B
|
-
|
Form
of
Assignment and Acceptance
|
|
Exhibit
C-1
|
-
|
Form
of
Opinion of Luxembourg Counsel for the Initial
Borrower
|
|
Exhibit
C-2
|
-
|
Form
of
Opinion of In-house Counsel for the Initial
Borrower
|
|
Exhibit
C-3
|
-
|
Form
of
Opinion of Special Counsel for the Initial
Borrower
|
|
Exhibit
D
|
-
|
Form
of
Borrower Accession Agreement
|
|
Exhibit
E
|
-
|
Form
of
Section 2.14 Certificate
|
|
Exhibit
F-1
|
-
|
Form
of
Tranche A Note
|
|
Exhibit
X-0
|
-
|
Xxxx
xx
Xxxxxxx X Note
|
|
Exhibit
F-3
|
-
|
Form
of
Competitive Bid Note
|
-
iii
-
$24,000,000,000
Dated
as of July
27, 2005,
as
amended as of
July 30, 2006 and as further amended as of December 7, 2006
PROCTER
&
XXXXXX INTERNATIONAL S.A.R.L.,
a société
à
responsabilité limitée
organized under
the laws of the Grand Duchy of Luxembourg (the “Initial
Borrower”
and,
together
with the Additional Borrowers (as hereinafter defined), collectively, the
“Borrowers”),
the LENDERS
PARTY HERETO, CITIBANK, N.A., as administrative agent for such Lenders (together
with any successor thereto appointed pursuant to Article VII, the
“Agent”),
CITIGROUP
GLOBAL MARKETS INC., as sole lead arranger and sole book runner, JPMORGAN
CHASE
BANK, N.A., as syndication agent, and ABN AMRO BANK N.V. and DEUTSCHE BANK
SECURITIES INC., as co-documentation agents, agree as follows:
ARTICLE
I
DEFINITIONS
AND
ACCOUNTING TERMS
SECTION
1.01 Certain
Defined
Terms.
As
used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
“Act”
has
the meaning
specified in Section 8.15.
“Additional
Borrowers”
has
the meaning
specified in Section 8.10(a).
“Advance”
means
a Tranche A
Advance, a Tranche B Advance or a Competitive Bid Advance by a Lender to
a
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a “Type”
of
Advance).
“Affiliate”
means,
as to any
Person, any other Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person or is a director or officer
of
such Person. For purposes of this definition, the term “control” (including the
terms “controlling”, “controlled by” and “under common control with”) of a
Person means the possession, direct or indirect, of the power to vote 10%
or
more of the Voting Equity of such Person.
“Agent’s
Account”
means
(a) the account of the Agent maintained thereby at Citibank, N.A., at its
office at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Account No. 00000000,
Attention: Bank Loan Syndications, (b) in the case of Advances denominated
in Euros, the account of the Sub-Agent designated in writing from time to
time
by the Agent to the Borrowers and the Lenders for such purpose, and (c) in
any such case, such other account of the Agent as is designated in writing
from
time to time by the Agent to each of the Borrowers and the Lenders for such
purpose.
“Amendment
Effective Date”
means
the date on
which the condition precedent to the effectiveness of the Amendment to this
Agreement, dated as of December 7, 2006, has been satisfied.
“Applicable
Lending Office”
means,
with
respect to each Lender, such Lender’s Domestic Lending Office in the case of a
Base Rate Advance and such Lender’s Eurocurrency Lending Office in the case of a
Eurocurrency Rate Advance and, in the case of a Competitive Bid Advance,
the
office of such Lender or any of its Affiliates notified by such Lender to
the
Agent as its Applicable Lending Office with respect to such Competitive Bid
Advance. It is acknowledged and agreed that any Lender may have one or more
Applicable Lending Offices with respect to Advances of any Type made or to
be
made to any Borrower and one or more other Applicable Lending Offices with
respect to Advances of such Type made or to be made to any other
Borrower.
“Applicable
Margin”
means,
as of any
date, (a) for Base Rate Advances, 0.000% per annum and (b) for
Eurocurrency Rate Advances, 0.060% per annum.
“Assignment
and
Acceptance”
means
an
assignment and acceptance entered into by a Lender and any Person and approved
by the Initial Borrower and the Agent, in substantially the form of Exhibit
B
hereto or in such other form as agreed to by the Initial Borrower, the Agent
and
the applicable assignee Lender.
“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, N.A. in New York, New York, from
time
to time, as Citibank, N.A.’s base rate; and
(b) 0.50%
per annum
above the Federal Funds Rate.
“Base
Rate
Advance”
means
a Revolving
Credit Advance denominated in Dollars that bears interest as provided in
Section 2.07(a)(i).
“beneficial
owner”
has
the meaning
specified in Section 2.14(c)(v).
“Borrowers”
has
the meaning
specified in the recital of parties to this Agreement.
“Borrowing”
means
a Revolving
Credit Borrowing or a Competitive Bid Borrowing.
“Borrower
Accession Agreement”
has
the meaning
specified in Section 8.10(a).
“Business
Day”
means
a day of
the year on which banks are not required or authorized by law to close in
New
York City and, if the applicable Business Day relates to any Eurocurrency
Rate
Advances, on which dealings are carried on in the London interbank market
(or,
in the case of an Advance denominated in Euros, on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
open).
“Closing
Date”
has
the meaning
specified in Section 3.01.
“Commitment”
means,
with
respect to each Lender, the Tranche A Commitment or the Tranche B Commitment
of
such Lender, as the context may require.
“Communications”
has
the meaning
specified in Section 8.02(b).
“Company”
means
The Procter
& Xxxxxx Company, an Ohio corporation of which the Initial Borrower is, as
of the Closing Date, a wholly-owned Subsidiary.
-
2 -
“Competitive
Bid
Advance”
means
an advance
by a Lender to any Borrower as part of a Competitive Bid Borrowing and refers
to
a Fixed Rate Advance or a Eurocurrency Rate Advance.
“Competitive
Bid
Borrowing”
means
a borrowing
consisting of simultaneous Competitive Bid Advances from each of the Lenders
whose offer to make one or more Competitive Bid Advances as part of such
Borrowing has been accepted under the competitive bidding procedure described
in
Section 2.03.
“Competitive
Bid
Note”
has
the meaning
specified in Section 2.03(f).
“Competitive
Bid
Reduction”
means,
at any
time, the deemed use of each Lender’s Tranche A Commitment in an amount equal to
such Lender’s Pro Rata Share of all outstanding Competitive Bid Advances at such
time.
“Confidential
Information”
means
information
that the Company or any Loan Party furnishes to the Agent or any Lender on
a
confidential basis or that a reasonable Person would conclude is confidential
or
proprietary, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Agent
or such Lender from a source other than any of the Loan Parties, the Company
or
any of their Affiliates or any of their respective advisors.
“Consolidated”
refers
to the
consolidation of accounts in accordance with GAAP.
“Consolidated
Assets”
means,
with
respect to any Loan Party, all assets of such Loan Party and its Included
Subsidiaries that, in accordance with GAAP, would be classified as assets
on the
balance sheet of such Loan Party determined on a Consolidated
basis.
“Convert”,
“Conversion”
and
“Converted”
each
refers to a
conversion of Revolving Credit Advances under a particular Facility and of
one
Type into Revolving Credit Advances under such particular Facility of the
other
Type pursuant to Section 2.08 or 2.09.
“Covered
Jurisdiction”
means,
with
respect to any Borrower, the United States, Switzerland and Ireland.
“Debt”
of
any Person
means, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than trade payables incurred
in
the ordinary course of such Person’s business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property acquired
by
such Person (even though the rights and remedies of the seller or lender
under
such agreement in the event of default are limited to repossession or sale
of
such property), (e) all obligations of such Person as lessee under leases
that have been or should be, in accordance with GAAP, recorded as capital
leases, (f) all non-contingent obligations to reimburse any Person in
respect of any amounts paid under acceptances, letters of credit or similar
extensions of credit, (g) all obligations of such Person in respect of
Hedge Agreements, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by
such Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell
services, primarily for the purpose of enabling the debtor to make payment
of
such Debt or to assure the holder of such Debt against loss, (iii) to
supply funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such property
is received or such services are rendered) or (iv) otherwise to assure a
creditor against loss, and (i) all Debt referred to in clauses (a)
through (h) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Mortgage on
property (including, without limitation, accounts and contract rights) owned
by
such Person, even though such Person has not assumed or become liable for
the
payment of such Debt.
-
3 -
“Default”
means
any Event
of Default or any event that would constitute an Event of Default but for
the
requirement that notice be given or time elapse or both.
“Dollars”
and
the
“$”
sign
each means
lawful currency of the United States of America.
“Domestic
Lending
Office”
means,
with
respect to any Lender, the office, offices, Affiliate or Affiliates of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule
I hereto or in the Assignment and Acceptance pursuant to which it became
a
Lender, or such other office or Affiliate of such Lender as such Lender may
from
time to time specify to each of the Borrowers and the Agent. It is acknowledged
and agreed that any Lender may specify one or more Domestic Lending Offices
with
respect to Advances made or to be made to any Borrower and one or more other
Domestic Lending Offices with respect to Advances made or to be made to any
other Borrower; provided
that no Lender may
specify more than one Domestic Lending Office unless it also specifies a
“Principal Domestic Lending Office”, in which case such “Principal Domestic
Lending Office” shall be deemed to be its “Domestic Lending Office” for purposes
of the definition herein of “Eurocurrency Lending Office” and Section
8.02.
“EBITDA”
means,
for any
Person for any period, net income (or net loss) plus the sum of
(a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined for such
Person and its Consolidated Subsidiaries in accordance with GAAP for such
period.
“EMU”
means
Economic
and Monetary Union as contemplated in the Treaty of Rome.
“EMU
Legislation”
means
legislative
measures of the European Union for the introduction of, changeover to or
operation of the Euro in one or more member states, being in part legislative
measures to implement EMU.
“Equivalent”
in
Dollars of
Euros on any date means the equivalent in Dollars of Euros determined by
using
the quoted spot rate at which the Sub-Agent’s principal office in London offers
to exchange Dollars for Euros in London prior to 4:00 P.M. (London time)
(unless otherwise indicated by the terms of this Agreement) on such date
as is
required pursuant to the terms of this Agreement, and the “Equivalent” in Euros
of Dollars means the equivalent in Euros of Dollars determined by using the
quoted spot rate at which the Sub-Agent’s principal office in London offers to
exchange Euros for Dollars in London prior to 4:00 P.M. (London time)
(unless otherwise indicated by the terms of this Agreement) on such date
as is
required pursuant to the terms of this Agreement.
“ERISA”
means
the
Employee Retirement Income Security Act of 1974, as amended from time to
time,
and the regulations promulgated and rulings issued thereunder.
“EURIBO
Rate”
means,
for any
Interest Period, the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a multiple)
appearing on Page 248 of the Moneyline Telerate Service (or on any
successor or substitute page) as the London interbank offered rate for deposits
in Euro at approximately 11:00 A.M. (London time) on the Business Day
immediately preceding the commencement of such Interest Period, for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of 1/100
of
1% per annum, if such average is not such a multiple) of the respective rates
per annum at which deposits in Euros are offered by the principal office
of each
of the Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) on the Business Day immediately
preceding the first day of such Interest Period in an amount substantially
equal
to such Reference Bank’s Eurocurrency Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period and for a period
equal
to such Interest Period, subject, however, to the provisions of
Section 2.08.
-
4 -
“Euro”
and
“(euro)”
means
the lawful
currency of the European Union as constituted by the Treaty of Rome which
established the European Community.
“Eurocurrency
Liabilities”
has
the meaning
assigned to that term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
“Eurocurrency
Lending Office”
means,
with
respect to any Lender, the office, offices, Affiliate or Affiliates of such
Lender specified as its “Eurocurrency Lending Office” opposite its name on
Schedule I hereto or in Assignment and Acceptance pursuant to which it became
a
Lender (or, if no such office is specified, its Domestic Lending Office),
or
such other office, offices, Affiliate or Affiliates of such Lender as such
Lender may from time to time specify to each of the Borrowers and the Agent.
It
is acknowledged and agreed that any Lender may specify one or more Eurocurrency
Lending Offices with respect to Advances made or to be made to any Borrower
and
one or more other Eurocurrency Lending Offices with respect to Advances made
or
to be made to any other Borrower.
“Eurocurrency
Rate”
means,
for any
Interest Period for each Eurocurrency Rate Advance comprising part of the
same
Borrowing, (a) in the case of any Advance denominated in Dollars, the rate
per annum (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum) appearing on Moneyline Telerate Markets Page 3750 (or on any
successor or substitute page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 A.M. (London time) on the Business Day
immediately preceding the first day of such Interest Period, for a term
comparable to such Interest Period or, if for any reason such rate is not
available, the average (rounded upward to the nearest whole multiple of 1/100
of
1% per annum, if such average is not such a multiple) of the rate per annum
at
which deposits in Dollars is offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market
at 11:00 A.M. (London time) on the Business Day immediately preceding the
first day of such Interest Period in an amount substantially equal to such
Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to
be outstanding during such Interest Period and for a period equal to such
Interest Period or, (b) in the case of any Advance denominated in Euros,
the EURIBO Rate. If the Moneyline Telerate Markets Page 3750 (or on any
successor or substitute page) is unavailable, the Eurocurrency Rate for any
Interest Period for each Eurocurrency Rate Advance comprising part of the
same
Borrowing shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks on the Business
Day immediately preceding the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
“Eurocurrency
Rate Advance”
means
a Revolving
Credit Advance denominated in either Optional Currency that bears interest
as
provided in Section 2.07(a)(ii) or a Competitive Bid Advance denominated in
either Optional Currency that bears interest by reference to the Eurocurrency
Rate.
“Events
of
Default”
has
the meaning
specified in Section 6.01.
“Excluded
Taxes”
means,
(a) with
respect to any Lender or the Agent, Taxes imposed on such Person’s overall net
income (and franchise Taxes imposed on such Person in lieu of net income
Taxes)
as a result of any present or former connection between such Person and the
relevant taxing authority, in each case, whether in effect as of the date
hereof
or subsequently imposed as a result of a Change in Law, and (b) with respect
to
payments made by any Borrower organized in a Covered Jurisdiction to any
Person,
any Taxes not imposed as a direct result of a Change in Law occurring after
the
date on which such Person became a Lender or the Agent.
-
5 -
“Existing
Agent”
means
Xxxxxxx
Xxxxx Capital Corporation, in its capacity as agent under the Existing Credit
Agreement.
“Existing
Credit
Agreement”
means
the Bridge
Credit Agreement dated as of January 28, 2005 between the Initial Borrower
and the Existing Agent, as amended, supplemented and otherwise modified by
the
First Amendment to Bridge Credit Agreement and Pledge Agreement dated as
of
April 14, 2005, the Second Amendment to Bridge Credit Agreement dated as of
May 4, 2005 and the Third Amendment to Bridge Credit Agreement dated as of
May 17, 2005.
“Existing
Pledge
Agreement”
means
the Pledge
Agreement dated as of March 28, 2005 by the Initial Borrower in favor of
the Existing Agent, as amended, supplemented and otherwise modified by the
First
Amendment to Bridge Credit Agreement and Pledge Agreement dated as of
April 14, 2005 and the Third Amendment to Bridge Credit Agreement dated as
of May 17, 2005.
“Facility”
means
the Tranche
A Facility or the Tranche B Facility, as the context may require.
“Facility
Fee”
has
the meaning
specified in Section 2.04(a).
“Federal
Funds
Rate”
means,
for any
period, a fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day,
the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
“Fixed
Rate
Advances”
means
a
Competitive Bid Advance denominated in either Optional Currency that bears
interest as provided in Section 2.03(a)(i).
“GAAP”
has
the meaning
specified in Section 1.03.
“Guarantor”
means
the Initial
Borrower, in its capacity as a guarantor under each of Guarantee Agreements
dated as of April 12, 2006 made by the Initial Borrower in favor of the Agent
and the Lenders.
“Hedge
Agreements”
means
interest
rate swap, cap or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts and other similar
agreements.
“Included
Subsidiaries”
means
with
respect to any Loan Party, the Subsidiaries of such Loan Parties that such
Loan
Party elects to include in the Consolidated financial statements of such
Loan
Party most recently delivered to the Agent pursuant to Section 4.01(e) or
5.01(d)(i).
“Initial
Lender”
means
each
financial institution identified as an Initial Lender on the signature pages
to
this Agreement.
-
6 -
“Interest
Payment
Date”
means
(a) with respect to any Base Rate Advance, (i) the last day of each
March, June, September and December during the period in which such Base
Rate
Advance is outstanding and (ii) the date such Base Rate Advance is
Converted or paid in full, and (b) with respect to any Eurocurrency Rate
Advance, (i) the last day of each Interest Period applicable to such
Eurocurrency Rate Advance and, if such Interest Period has a duration of
more
than three months, each day that occurs during such Interest Period every
three
months from the first day of such Interest Period and (ii) the date such
Eurocurrency Rate Advance is Converted or paid in full.
“Interest
Period”
means,
for each
Eurocurrency Rate Advance comprising part of the same Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance or the date of the
Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and
ending on the last day of the period selected by the Borrower requesting
a
Borrowing pursuant to the provisions below and, thereafter, with respect
to
Eurocurrency Rate Advances, each subsequent period commencing on the last
day of
the immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one week or one, two, three or six
months,
as such Borrower may, upon notice received by the Agent not later than 9:00
A.M.
(New York City time) on the Business Day immediately preceding the first
day of
such Interest Period, select; provided,
however,
that:
(a) no
Borrower may
select any Interest Period that ends after the Termination Date;
(b) Interest
Periods
commencing on the same date for Eurocurrency Rate Advances comprising part
of
the same Borrowing shall be of the same duration;
(c) whenever
the last
day of any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the
next
succeeding Business Day, provided,
however,
that, if such
extension would cause the last day of such Interest Period to occur in the
next
following calendar month, the last day of such Interest Period shall occur
on
the next preceding Business Day; and
(d) whenever
the first
day of any Interest Period occurs on a day of an initial calendar month for
which there is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months equal to the
number
of months in such Interest Period, such Interest Period shall end on the
last
Business Day of such succeeding calendar month.
“Internal
Revenue
Code”
means
the
Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
“Lenders”
means
each
Initial Lender and each Person that shall become a party hereto pursuant
to
Section 8.07 and, as to any Lender, the term “Lender” includes any of its
Affiliates designated as such by such Lender located in (e.g.,
being fiscally
resident in or organized in or having a branch, office, permanent establishment
or other place of business in) a Covered Jurisdiction.
“Loan
Documents”
means,
collectively, this Agreement, each Note, if any, and each Borrower Accession
Agreement.
“Loan
Parties”
means,
collectively, at any time, the Borrowers and the Guarantors at such
time.
“Material
Adverse
Change”
means
any
material adverse change in the financial condition or results of operations
of
the Borrowers and their Subsidiaries, taken as a whole.
-
7 -
“Material
Adverse
Effect”
means
a material
adverse effect on (a) the financial condition or results of operations of
the Loan Parties and their Subsidiaries, taken as a whole, (b) the rights
and remedies of the Agent or the Lenders under any Loan Document or (c) the
ability of the Loan Parties to perform their obligations under the Loan
Document.
“Material
Subsidiary”
means,
at any
time, any Subsidiary of the Initial Borrower having (a) assets with a value
of not less than 5% of the total value of the assets of the Initial Borrower
and
its Subsidiaries, taken as a whole, or (b) Consolidated EBITDA of not less
than 5% of the aggregate Consolidated EBITDA of the Initial Borrower and
its
Subsidiaries, taken as a whole, in each case as of the end of or for the
most
recently completed fiscal quarter of the Initial Borrower.
“Moody’s”
means
Xxxxx’x
Investors Service, Inc.
“Mortgage”
means
any lien or
security interest or other charge or encumbrance having the effect of a lien
or
security interest.
“Non-Excluded
Taxes”
has
the meaning
specified in Section 2.14(a).
“Note”
means
a Tranche A
Note, a Tranche B Note or a Competitive Bid Note, as context may
require.
“Notice”
has
the meaning
specified in Section 8.02(c).
“Notice
of
Competitive Bid Borrowing”
has
the meaning
specified in Section 2.03(a).
“Notice
of
Revolving Credit Borrowing”
has
the meaning
specified in Section 2.02(a).
“Optional
Currency”
means
Dollars or
Euros, as context may require.
“P&G
Guaranty”
means
the
Guaranty dated as of August 23, 2006 made by the Company in favor of the
Agent
and the Lenders.
“Permitted
Mortgages”
means
the
following types of Mortgages:
(a) Mortgages
for
taxes, assessments and governmental charges or levies to the extent not
otherwise required to be paid under Section 5.01(b);
(b) Mortgages
imposed
by law, including, without limitation, materialmen’s, mechanics’, carriers’,
workmen’s, storage and repairmen’s Mortgages and other similar Mortgages arising
in the ordinary course of business;
(c) pledges
or deposits
to secure obligations under workers’ compensation laws, unemployment insurance
or other similar social security legislation (including, without limitation,
in
respect of employee benefit plans subject to ERISA) or to secure public or
statutory obligations;
(d) Mortgages
securing
the performance of, or payment in respect of, tenders, statutory obligations,
progress or advance payments, contract bids, government or utility obligations,
payment, performance, surety and return-of-money bonds and other similar
obligations incurred in the ordinary course of business and other obligations
of
a similar nature, whether pursuant to statutory requirements, common law
or
consensual arrangements;
-
8 -
(e) any
interest or
title of a lessor or sublessor or a licensor and any restriction or encumbrance
to which the interest or title of such lessor, sublessor or licensor may
be
subject;
(f) Mortgages
arising
out of judgments or awards that do not constitute an Event of Default under
Section 6.01(e) or 6.01(f);
(g) rights
of way,
easements, restrictions (including zoning restrictions), covenants, consents,
reservations, encroachments, variations, mineral reservations and rights,
leases, licenses and other similar restrictions, charges, encumbrances (whether
or not recorded), prior rights of other Persons, and similar obligations
with
respect to real property arising by operation of law or contained in similar
instruments;
(h) Mortgages
arising
from the rights of lessors under leases (including financing statements
regarding property subject to such leases or subleases); and
(i) rights
of
consignors of goods, whether or not perfected by the filing of a financing
statement under the Uniform Commercial Code of any jurisdiction (or similar
filings and recordings under equivalent provisions of applicable law),
including, without limitation, goods which are the subject of tolling agreements
or manufacturing and servicing agreements.
“Person”
means
an
individual, partnership, corporation (including a business trust), joint
stock
company, trust, unincorporated association, joint venture, limited liability
company or other entity, or a government or any political subdivision or
agency
thereof.
“Platform”
has
the meaning
specified in Section 8.02(b).
“Pledge
Agreement”
means
that
certain Pledge Agreement, dated as of July 27, 2005, executed by the Initial
Borrower in favor of the Agent, as such Pledge Agreement has been amended,
supplemented and otherwise modified and in effect from time to time prior
to the
Amendment Effective Date.
“Pre-Amendment
Advances”
means
the
Advances outstanding under this Agreement on the Amendment Effective Date
immediately prior to the effectiveness of the Amendment to this Agreement,
dated
as of December 7, 2006.
“Pre-Amendment
Commitments”
means
the
Commitments under this Agreement as in effect on the Amendment Effective
Date
immediately prior to the effectiveness of the Amendment to this Agreement,
dated
as of December 7, 2006.
“Principal
Manufacturing Property”
means
any
facility (together with the land on which it is erected and fixtures comprising
a part thereof) used primarily for manufacturing or processing, wherever
located, owned or leased by any Borrower, any Subsidiary of any Borrower,
or any
Guarantor and having a gross book value in excess of $750,000,000, other
than
any such facility or portion thereof (a) which is a pollution control or
other
facility financed by obligations issued by (i) a state or local governmental
unit pursuant to Section 103(b)(4)(E), 103(b)(4)(F) or 103(b)(6) of the Internal
Revenue Code of 1954, or any successor provision thereof, or (ii) the equivalent
of the financing referred to in subclause (a)(i) above in any jurisdiction
other
than the United States, or (b) which, in the opinion of the Board of Directors
of the Intial Borrower or the applicable Loan Party, is not of material
importance to the total business conducted by the Loan Parties and their
Subsidiaries, considered as a whole.
“Process
Agent”
has
the meaning
specified in Section 8.12.
-
9 -
“Pro
Rata
Share”
of
any amount
means, with respect to any Lender at any time, the product of (a) such amount
multiplied by (b) a fraction the numerator of which is the amount of such
Lender's Commitment(s) under the applicable Facility or Facilities at such
time
(or, if the Commitments shall have been terminated pursuant to Section 2.05
or
6.01 at or prior to such time, such Lender's Commitment(s) under the applicable
Facility or Facilities as in effect immediately prior to such termination)
and
the denominator of which is the aggregate amount of such Facility or Facilities
at such time (or, if the Commitments shall have been terminated pursuant
to
Section 2.05 or 6.01 at or prior to such time, the applicable Facility or
Facilities as in effect immediately prior to such termination).
“Reference
Advance”
has
the meaning
specified in Section 2.07(c).
“Reference
Banks”
means
(a) in the
case of any Revolving Credit Borrowing, Citibank, N.A. and JPMorgan Chase
Bank,
N.A. and (b) in the case of any Competitive Bid Borrowing, two of the Lenders
making the all or part of such Competitive Bid Borrowing (as selected by
the
applicable Borrower) or if only one Lender is making such Competitive Bid
Borrowing, such Lender.
“Register”
has
the meaning
specified in Section 8.07(d).
“Registration
Rights Agreement”
means
the
Registration Rights Agreement, dated as of July 27, 2005, by and between
the
Company and the Agent, as such Registration Rights Agreement has been amended,
supplemented and otherwise modified and in effect from time to time prior
to the
Amendment Effective Date.
“Related
Party”
means
a Person
(a) a majority of whose voting common equity is owned directly or
indirectly by, or is under common control with, the Initial Borrower, and
that
includes the name “Procter & Xxxxxx” or “P&G” in its legal name or
commonly used trade names, or (b) that directly or indirectly owns a majority
of
the voting common equity in the Initial Borrower and includes the name “Procter
& Xxxxxx” or “P&G” in its legal name or commonly used trade
names.
“Required
Lenders”
means
at any time
Lenders owed in excess of 50% of the then aggregate unpaid principal amount
(based on the Equivalent in Dollars at such time) of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having in excess of 50% of the Commitments; provided,
however,
that if any
Lender shall be an Affiliate of any Borrower at such time, there shall be
excluded from the determination of Required Lenders at such time the then
aggregate unpaid principal amount (based on the Equivalent in Dollars at
such
time) of the Revolving Credit Advances owing to such Affiliate (in its capacity
as a Lender) at such time or, if no such principal amount is then outstanding,
such Affiliate’s Commitment at such time.
“Revolving
Credit
Advance”
means
a Tranche A
Advance or a Tranche B Advance, as applicable.
“Revolving
Credit
Borrowing”
means
a Tranche A
Borrowing or a Tranche B Borrowing, as applicable.
“S&P”
means
Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
“Sub-Agent”
means
Citibank
International plc.
“Subsidiary”
of
any Person
means any corporation, partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority
of
the Board of Directors of such corporation (irrespective of whether at the
time
capital stock of any other class or classes of such corporation shall or
might
have voting power upon the occurrence of any contingency), (b) the interest
in the capital or profits of such limited liability company, partnership
or
joint venture or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person’s other Subsidiaries.
-
10 -
“Taxes”
has
the meaning
specified in Section 2.14(a).
“Termination
Date”
means
the earlier
of (a) July 27, 2008 and (b) the date of termination in whole of
the aggregate Commitments pursuant to Section 2.05 or 6.02.
“Tranche
A
Advance”
means
an advance
by a Lender to a Borrower as part of a Tranche A Borrowing and refers to
a Base
Rate Advance or a Eurocurrency Rate Advance.
“Tranche
A
Borrowing”
means
a Borrowing
consisting of simultaneous Tranche A Advances of the same Type made by each
of
the Lenders pursuant to Section 2.01(b).
“Tranche
A
Commitment”
means,
with
respect to each Lender, the amount set forth opposite such Lender’s name on
Schedule II hereof and identified as its “Tranche A Commitment” or, if such
Lender has entered into any Assignment and Acceptance, the amount set forth
for
such Lender in the Register maintained by the Agent pursuant to
Section 8.07(d), as such amount may be reduced pursuant to
Section 2.05.
“Tranche
A
Facility”
means,
at any
time, the aggregate Tranche A Commitments of all of the Lenders at such
time.
“Tranche
A
Note”
has
the meaning
specified in Section 2.17(a).
“Tranche
B
Advance”
means
an advance
by a Lender to a Borrower as part of a Tranche B Borrowing and refers to
a Base
Rate Advance or a Eurocurrency Rate Advance.
“Tranche
B
Borrowing”
means
a Borrowing
consisting of simultaneous Tranche B Advances of the same Type made by each
of
the Lenders pursuant to Section 2.01(c).
“Tranche
B
Commitment”
means,
with
respect to each Lender, the amount set forth opposite such Lender’s name on
Schedule II hereof and identified as its “Tranche B Commitment” or, if such
Lender has entered into any Assignment and Acceptance, the amount set forth
for
such Lender in the Register maintained by the Agent pursuant to
Section 8.07(d), as such amount may be reduced pursuant to
Section 2.05.
“Tranche
B
Facility”
means,
at any
time, the aggregate Tranche B Commitments of all of the Lenders at such
time.
“Tranche
B
Note”
has
the meaning
specified in Section 2.17(a).
“Transaction”
means
the
Company’s acquisition of Xxx Xxxxxxxx Xxxxxxx as announced in the Company’s
press release dated January 28, 2005 filed on Form 8-K with the United States
Securities and Exchange Commission.
“Transaction
Termination Date”
means
the date of
any public announcement by the Company that the Transaction has expired or
has
been terminated.
-
11 -
“Treaty
of
Rome”
means
the Treaty
of Rome of 25 March 1957, as amended by the Single Xxxxxxxx Xxx 0000 and
the
Maastricht Treaty (which was signed at Maastricht on 7 February 1992 and
came
into force on 1 November 1993), as such treaty may be amended from time to
time
and as referred to in the EMU legislation.
“Type”
has
the meaning
specified in the definition of “Advance”
in
Section 1.01.
“Unused
Tranche A
Commitment”
means,
with
respect to any Lender at any time, (a) such Lender’s Tranche A Commitment
at such time, less
(b) the sum
of:
(i) the
aggregate
principal amount of all Tranche A Advances made by such Lender (in its capacity
as a Lender) and outstanding at such time; and
(ii) the
product of
(x) a fraction the numerator of which is the amount of such Lender’s
Tranche A Commitment at such time minus
the aggregate
principal amount of the Tranche A Advances held by such Lender at such time
and
the denominator of which is the aggregate Tranche A Commitments of all Lenders
at such time minus
the aggregate
principal amount of the Tranche A Advances made by the Lenders and outstanding
at such time and (y) the aggregate principal amount of Competitive Bid Advances
made by the Lenders and outstanding at such time.
“Unused
Tranche B
Commitment”
means,
with
respect to any Lender at any time, (a) such Lender’s Tranche B Commitment
at such time less
(b) the
aggregate principal amount of all Tranche B Advances made by such Lender
(in its
capacity as a Lender) and outstanding at such time.
“Utilization
Fee”
means,
as of any
date that the sum of the aggregate principal amount of the Advances (other
than
Competitive Bid Advances) outstanding exceeds 50% of the aggregate Commitments,
0.015% per annum.
“Voting
Equity”
means
capital
stock issued by a corporation, or equivalent interests in any other Person,
the
holders of which are ordinarily, in the absence of contingencies, entitled
to
vote for the election of directors (or persons performing similar functions)
of
such Person, even if the right so to vote has been suspended by the happening
of
such a contingency.
SECTION
1.02 Computation
of
Time Periods.
In
this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until”
each mean “to but excluding”.
SECTION
1.03 Accounting
Terms.
All
accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistent with those applied in
the
preparation of the financial statements referred to in Section 4.01(e)
(“GAAP”).
ARTICLE
II
AMOUNTS
AND TERMS
OF THE ADVANCES
SECTION
2.01 The
Revolving
Credit Advances and Reallocation between Facilities.
(a) Reallocation
of
Pre-Amendment Commitments and Pre-Amendment Advances.
The Lenders
hereby agree that on the Amendment Effective Date, subject to the terms and
conditions hereinafter set forth, (i) $3,000,000,000 of the Pre-Amendment
Commitments shall be reallocated ratably among the Lenders (based on their
respective Pre-Amendment Commitments) as Tranche B Commitments and the remaining
Pre-Amendment Commitments shall be reallocated ratably among the Lenders
(based
on their respective Pre-Amendment Commitments) as Tranche A Commitments for
any
and all purposes of the Loan Documents, and (ii) as part of the aggregate
Pre-Amendment Commitments reallocated among the Lenders in accordance with
clause (i) above, (A) $2,186,465,659.84 of the Pre-Amendment Advances comprising
part of the same Borrowing and having an Interest Period maturing on December
18, 2006 and (B) $540,321,316.31 of the Pre-Amendment Advances comprising
part
of the same Borrowing and having an Interest Period maturing on December
20,
2006, shall be reallocated ratably among the Lenders (based on their respective
Tranche B Commitments) as Tranche B Advances comprising part of the same
Tranche
B Borrowings and having Interest Periods maturing on the same respective
dates
and the remaining Pre-Amendment Advances shall be reallocated ratably among
the
Lenders (based on their respective Tranche A Commitments) as Tranche A Advances
without any changes to their respective Interest Periods.
-
12 -
(b) Tranche
A
Advances.
Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Tranche A Advances to each Borrower from time to time on any Business Day
during
the period from the Closing Date until the Termination Date in an aggregate
amount (based in respect of any Advances to be denominated in Euros by reference
to the Equivalent thereof in Dollars determined on the date of delivery of
the
applicable Notice of Revolving Credit Borrowing) not to exceed such Lender’s
Unused Tranche A Commitment at such time. Each such Borrowing shall be in
a
minimum amount of $10,000,000, in respect of Tranche A Advances denominated
in
Dollars, or (euro)10,000,000, in respect of Tranche A Advances denominated
in
Euros (or, if less, an aggregate amount equal to the amount by which the
aggregate amount of a proposed Competitive Bid Borrowing requested by any
Borrower exceeds the aggregate amount of Competitive Bid Advances offered
to be
made by the Lenders and accepted by such Borrower in respect of such Competitive
Bid Borrowing, if such Competitive Bid Borrowing is made on the same date
as
such Tranche A Borrowing), and shall consist of Tranche A Advances of the
same
Type made on the same day by the Lenders ratably according to their respective
Tranche A Commitments; provided
that such minimum
amount shall not apply with respect to any Tranche A Advances made in accordance
with the provisions of Section 2.04(b) or Section 2.07(c). Within the
limits of each Lender’s Tranche A Commitment, each Borrower may borrow under
this Section 2.01(b), prepay pursuant to Section 2.10 and reborrow
under this Section 2.01(b).
(c) Tranche
B
Advances.
Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Tranche B Advances to each Borrower from time to time on any Business Day
during
the period from the Closing Date until the Termination Date in an aggregate
amount (based in respect of any Advances to be denominated in Euros by reference
to the Equivalent thereof in Dollars determined on the date of delivery of
the
applicable Notice of Revolving Credit Borrowing) not to exceed such Lender’s
Unused Tranche B Commitment at such time. Each such Borrowing shall be in
a
minimum amount of $10,000,000, in respect of Tranche B Advances denominated
in
Dollars, or (euro)10,000,000, in respect of Tranche B Advances denominated
in
Euros, and shall consist of Tranche B Advances of the same Type made on the
same
day by the Lenders ratably according to their respective Tranche B Commitments;
provided
that such minimum
amount shall not apply with respect to any Tranche B Advances made in accordance
with the provisions of Section 2.04(c) or Section 2.07(c). Within the
limits of each Lender’s Tranche B Commitment, each Borrower may borrow under
this Section 2.01(c), prepay pursuant to Section 2.10 and reborrow
under this Section 2.01(c).
(d) Further
Reallocation of Advances and Commitments. The
Initial
Borrower shall be entitled, upon at least one Business Day's notice to the
Agent, to reallocate a portion of the Tranche A Commitments to additional
Tranche B Commitments (and vice versa) and/or to reallocate all or a portion
of
the outstanding Tranche A Advances comprising part of the same Borrowings
to
additional Tranche B Advances comprising part of the same Borrowings (and
vice
versa); provided
that (a) each such
reallocation of Commitments and/or Advances shall be made ratably among the
Lenders; provided
that the Initial
Borrower, in its sole discretion, may elect to reallocate all, a portion
or none
of such Commitments and/or Advances to any Lender that is an Affiliate of
a
Borrower, (b) any such reallocation of Advances shall be in an aggregate
principal amount of at least $100,000,000 (or the Euro Equivalent thereof)
or
shall otherwise be all of the Revolving Credit Advances comprising part of
the
same Borrowings and (c) any such reallocation of Commitments and/or Advances
may
(but shall not be required) be made in conjunction with the exercise of the
call
rights set forth in Section 2.18 and/or the put rights set forth in Section
2.19. Any notice delivered by the Initial Borrower pursuant to this Section
2.01(d) shall specify (i) the effective date of each intended reallocation
of
Commitments and/or Advances (ii) whether the reallocation is of Commitments,
Revolving Credit Advances or both, (iii) the amount of each such reallocation
of
Commitments and/or Revolving Credit Advances and, in the case of Revolving
Credit Advances, which Borrowings are to comprise such reallocation. On or
promptly following the effective date of any reallocation of Commitments
and/or
Revolving Credit Advances pursuant to this Section 2.01(d), the Agent shall
notify the Lenders of the effective date of each such reallocation and shall
distribute a revised Schedule II hereto reflecting each such
reallocation.
-
13 -
SECTION
2.02 Making
the
Revolving Credit Advances.
(a) Each
Revolving
Credit Borrowing shall be made on notice, given not later than
(i) 9:00 A.M. (New York City time) on the Business Day immediately
preceding the date of the proposed Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars,
(ii) 11:00 A.M. (London time) on the second Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in
Euros,
or (iii) 9:00 A.M. (New York City time) on the Business Day of the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to the
Agent
(and, in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances denominated in Euros, simultaneously to the Sub-Agent), which
shall give to each Lender prompt notice thereof by telecopier or Email. Each
such notice of a Revolving Credit Borrowing (a “Notice
of
Revolving Credit Borrowing”)
shall be by
Email, confirmed promptly by telephone, shall be in substantially the form
of
Exhibit A-1
hereto, specifying
therein (A) the requested date of such Revolving Credit Borrowing, (B)
whether such Borrowing is a Tranche A Borrowing or a Tranche B Borrowing,
(C) the requested Type and Optional Currency of Revolving Credit Advances
comprising such Revolving Credit Borrowing, (D) the requested aggregate
amount of such Revolving Credit Borrowing, (E) in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances, the requested
initial
Interest Period for each such Revolving Credit Advance, and (F) the
requested account to which the proceeds of the requested Revolving Credit
Borrowing are to be transferred. Each Lender shall, before 11:00 A.M. (New
York
City time) on the date of such Revolving Credit Borrowing, make available
for
the account of its Applicable Lending Office to the Agent at the Agent’s
Account, in same day funds, such Lender’s ratable portion of such Revolving
Credit Borrowing. After the Agent’s receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will make
such
funds available to the appropriate Borrower by transferring the amount thereof
to the account designated by such Borrower for such purpose.
(b) Anything
in
subsection (a) above to the contrary notwithstanding, no Borrower may
select Eurocurrency Rate Advances for any Revolving Credit Borrowing if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each
Notice of
Revolving Credit Borrowing shall be irrevocable and binding on the Borrower
giving such notice. In the case of any Revolving Credit Borrowing which the
related Notice of Revolving Credit Borrowing specifies is to be composed
of
Eurocurrency Rate Advances, such Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a result of any failure
to
fulfill on or before the date specified in such Notice of Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss (excluding
loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
-
14 -
(d) Unless
the Agent or
the Sub-Agent, as the case may be, shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will
not
make available to the Agent or the Sub-Agent, as the case may be, such Lender’s
Pro Rata Share of such Revolving Credit Borrowing, the Agent or the Sub-Agent,
as the case may be, may assume that such Lender has made such portion available
to the Agent or the Sub-Agent, as the case may be, on the date of such Revolving
Credit Borrowing in accordance with subsection (a) of this
Section 2.02 and the Agent or the Sub-Agent, as the case may be, may, in
reliance upon such assumption, make available to the Borrower requesting
such
Revolving Credit Borrowing on such date a corresponding amount. If and to
the
extent that such Lender shall not have so made such ratable portion available
to
the Agent or the Sub-Agent, as the case may be, such Lender and such Borrower
severally agree to repay to the Agent or the Sub-Agent, as the case may be,
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such Borrower
until
the date such amount is repaid to the Agent or the Sub-Agent, as the case
may
be, at (i) in the case of such Borrower, the interest rate applicable at
the time to Revolving Credit Advances comprising such Revolving Credit Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent or the Sub-Agent, as the case may be, such
corresponding amount, such amount so repaid shall constitute such Lender’s
Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes
of this Agreement.
(e) The
failure of any
Lender to make the Revolving Credit Advance to be made by it as part of any
Revolving Credit Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the date of such
Revolving Credit Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Revolving Credit Advance to be made by such
other Lender on the date of any Revolving Credit Borrowing.
(f) Any
Revolving
Credit Advance made by any Applicable Lending Office of any Lender shall
be
deemed to be an Advance of such Lender for purposes of calculating the
utilization of the Tranche A Commitment or the Tranche B Commitment (as
applicable) of such Lender hereunder, except that if such Applicable Lending
Office of such Lender is another Lender, such Revolving Credit Advance shall
be
deemed to be an Advance of such other Lender for purposes of calculating
the
utilization of the Tranche A Commitments or the Tranche B Commitments (as
applicable) of both such Lenders hereunder.
SECTION
2.03 Competitive
Bid
Facility.
(a) Each
Lender severally agrees that any Borrower may make Competitive Bid Borrowings
under this Section 2.03 from time to time on any Business Day during the
period from the Closing Date until the date occurring 30 days prior to the
then
scheduled Termination Date in the manner set forth below; provided
that, the
aggregate principal amount of the Competitive Bid Advances comprising each
Competitive Bid Borrowing shall not exceed the aggregate Unused Tranche A
Commitments of the Lenders at such time.
(i) Any
Borrower may
request a Competitive Bid Borrowing under this Section 2.03 by delivering
to the Agent (and, in the case of a Competitive Bid Borrowing not consisting
of
Fixed Rate Advances or Eurocurrency Rate Advances to be denominated in Dollars,
simultaneously to the Sub-Agent), by telephone or Email, confirmed promptly
in
writing, or by telecopier, a notice of a Competitive Bid Borrowing (a
“Notice
of
Competitive Bid Borrowing”),
in
substantially the form of Exhibit
A-2
hereto, specifying
therein (A) the requested date of such proposed Competitive Bid Borrowing
(which shall be a Business Day), (B) the requested aggregate amount and
Optional Currency of such proposed Competitive Bid Borrowing, (C) whether
such proposed Competitive Bid Borrowing shall consist of Fixed Rate Advances
or
Eurocurrency Rate Advances, (D) in the case of a Competitive Bid Borrowing
consisting of (1) Eurocurrency Rate Advances, the requested Interest Period
for each such Eurocurrency Rate Advance and (2) Fixed Rate Advances, the
requested maturity date for repayment of each such Fixed Rate Advance (which
maturity date may not be earlier than the date occurring seven days after
the
date of such proposed Competitive Bid Borrowing or later than the earlier
of
(x) 360 days after the date of such proposed Competitive Bid Borrowing and
(y) the Termination Date), (E) the requested interest payment date or
dates for each Competitive Bid Advance comprising part of such proposed
Competitive Bid Borrowing, (F) whether or not the Competitive Bid Advances
comprising such proposed Competitive Bid Borrowing may be prepaid and, if
so,
whether with or without penalty, (G) the address and account number of such
Borrower to which the proceeds of such proposed Competitive Bid Borrowing
are to
be advanced, and (H) the requested other terms, if any, to be applicable to
such proposed Competitive Bid Borrowing, not later than (I) 9:00 A.M.
(New York City time) at least two Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in the
related Notice of Competitive Bid Borrowing that the rates of interest to
be
offered by the Lenders shall be fixed rates per annum (the Advances comprising
any such Competitive Bid Borrowing, which shall be denominated in Dollars
or
Euros, being referred to herein as “Fixed
Rate
Advances”)
(II) 9:00 A.M. (New York City time) three Business Days preceding the
date of the proposed Competitive Bid Borrowing in the case of a Competitive
Bid
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars,
and
(III) 2:00 P.M. (New York City time) three Business Days preceding the
date of the proposed Competitive Bid Borrowing in the case of a Competitive
Bid
Borrowing consisting of Eurocurrency Rate Advances denominated in Euros.
Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on the
Borrower that requested such Competitive Bid Borrowing. The Agent or the
Sub-Agent, as the case may be, shall in turn promptly notify each Lender
of each
request for a Competitive Bid Borrowing received by it from any Borrower
by
sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
-
15 -
(ii) Each
Lender may, in
its sole discretion, elect to irrevocably offer to make one or more Competitive
Bid Advances to the Borrower requesting the Competitive Bid Advances as part
of
such proposed Competitive Bid Borrowing at a rate or rates of interest specified
by such Lender in its sole discretion, by notifying the Agent or the Sub-Agent,
as the case may be (which shall give prompt notice thereof to the Borrower
requesting the Competitive Bid Borrowing), before 12:00 P.M. (New York City
time) one Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed
Rate
Advances, and (B) before 1:00 P.M. (New York City time) two Business
Days prior to the date of the proposed Competitive Bid Borrowing, in the
case of
a Competitive Bid Borrowing consisting of Eurocurrency Rate Advances, of
the
minimum amount and maximum amount of each Competitive Bid Advance that such
Lender would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts, subject to the proviso
of the first
sentence of this Section 2.03(a), may exceed such Lender’s Tranche A
Commitment, if any), the rate or rates of interest therefor and such Lender’s
Applicable Lending Office with respect to such Competitive Bid Advance;
provided
that if the Agent,
in its capacity as a Lender, shall, in its sole discretion, elect to make
any
such offer, it shall notify the Borrower requesting such Competitive Bid
Borrowing of such offer at least 30 minutes before the time and on the date
on
which notice of such election is to be given to the Agent or to the Sub-Agent,
as the case may be, by the other Lenders. If any Lender shall elect not to
make
such an offer, such Lender shall so notify the Agent, before 10:00 A.M.
(New York City time) or the Sub-Agent before 12:00 noon (London time), as
the
case may be, on the date on which notice of such election is to be given
to the
Agent or to the Sub-Agent, as the case may be, by the other Lenders, and
such
Lender shall not be obligated to, and shall not, make any Competitive Bid
Advance as part of such proposed Competitive Bid Borrowing; provided
that the failure
by any Lender to give such notice shall not cause such Lender to be obligated
to
make any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
-
16 -
(iii) The
Borrower
requesting any particular Competitive Bid Borrowing shall, in turn, before
(A) 4:00 P.M. (New York City time) one Business Day prior to the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid
Borrowing consisting of Fixed Rate Advances, and (B) 4:00 P.M. (New
York City time) two Business Days prior to the date of such proposed Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of
Eurocurrency Rate Advances, either:
(A) cancel
such
Competitive Bid Borrowing by giving the Agent notice to that effect;
or
(B) accept
one or more
of the offers made by any Lender or Lenders pursuant to
Section 2.03(a)(ii), in its sole discretion but subject to the next two
succeeding sentences, by giving notice to the Agent or to the Sub-Agent,
as the
case may be, of the amount of each Competitive Bid Advance (which amount
shall
be equal to or greater than the minimum amount, and equal to or less than
the
maximum amount, notified to such Borrower by the Agent or the Sub-Agent,
as the
case may be, on behalf of such Lender for such Competitive Bid Advance pursuant
to Section 2.03(a)(ii)) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by Lenders
pursuant to Section 2.03(a)(ii) by giving the Agent or the Sub-Agent, as
the case may be, notice to that effect; provided,
however,
that such
Borrower may not accept offers that, in the aggregate, exceed the amount
of the
proposed Competitive Bid Borrowing specified in the related Notice of
Competitive Bid Borrowing. The Borrower that requested such Competitive Bid
Borrowing shall accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest rates of interest
offered by such Lenders for a particular Competitive Bid Borrowing. If two
or
more Lenders have offered the same interest rate for a particular Competitive
Bid Borrowing, the amount to be borrowed at such interest rate will be allocated
among such Lenders ratably according to the amount that each such Lender
offered
at such interest rate.
(iv) If
the Borrower
that requested any particular Competitive Bid Borrowing notifies the Agent
or
the Sub-Agent, as the case may be, that such Competitive Bid Borrowing is
cancelled pursuant to Section 2.03(a)(iii)(A), the Agent or the Sub-Agent,
as the case may be, shall give prompt notice thereof to each of the Lenders
and
such Competitive Bid Borrowing shall not be made.
(v) If
the Borrower
that requested any particular Competitive Bid Borrowing accepts one or more
of
the offers made by any Lender or Lenders pursuant to
Section 2.03(a)(iii)(B) in respect of such Competitive Bid Borrowing, the
Agent or the Sub-Agent, as the case may be, shall in turn promptly notify
(A) each Lender that has made an offer as described in
Section 2.03(a)(ii) of the date and the aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made by
such
Lender pursuant to Section 2.03(a)(ii) have been accepted by such Borrower
and (B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, (1) of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing
and
(2) upon receipt, that the Agent or the Sub-Agent, as the case may be, has
received forms of documents appearing to fulfill the applicable conditions
set
forth in Article III. Each Lender that is to make a Competitive Bid Advance
as part of any Competitive Bid Borrowing shall, before 12:00 Noon (New York
City time) on the date of such Competitive Bid Borrowing specified in the
notice
received from the Agent or from the Sub-Agent, as the case may be, pursuant
to
subclause (v)(A) of the immediately preceding sentence or any later time
when such Lender shall have received notice from the Agent or from the
Sub-Agent, as the case may be, pursuant to subclause (v)(B)(2) of the
immediately preceding sentence, make available for the account of its Applicable
Lending Office to the Agent at the applicable Agent’s Account, in same day
funds, such Lender’s portion of such Competitive Bid Borrowing. Upon fulfillment
of the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to the
Borrower that requested such Borrowing at the address and the account number
specified by such Borrower in the related Notice of Competitive Bid Borrowing
or, if no such address and account number are specified in the related Notice
of
Competitive Bid Borrowing, at the Agent’s address referred to in
Section 8.02. Promptly after (x) each Competitive Bid Borrowing, the
Agent will notify each Lender of the amount of such Competitive Bid Borrowing,
the corresponding Competitive Bid Reduction resulting therefrom and the dates
upon which such Competitive Bid Reduction commenced and will terminate and
(y) the prepayment of any Competitive Bid Borrowing by the applicable
Borrower, the Agent will notify each Lender of the amount and date of each
such
prepayment and the amount, if any, of the corresponding Competitive Bid
Reduction remaining after giving effect thereto.
-
17 -
(vi) If
the Borrower
that requested any applicable Competitive Bid Borrowing notifies the Agent
or
the Sub-Agent, as the case may be, that it accepts one or more of the offers
made by any Lender or Lenders pursuant to Section 2.03(a)(iii)(B), such
notice of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Competitive Bid Borrowing for such Competitive
Bid
Borrowing the applicable conditions set forth in Article III, including,
without
limitation, any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds
acquired by such Lender to fund the Competitive Bid Advance to be made by
such
Lender as part of such Competitive Bid Borrowing when such Competitive Bid
Advance, as a result of such failure, is not made on such date.
(b) Each
Competitive
Bid Borrowing shall be in an aggregate amount of not less than $10,000,000,
in
respect of Revolving Credit Advances denominated in Dollars, or
(euro)10,000,000, in respect of Revolving Credit Advances denominated in
Euros
and, following the making of each Competitive Bid Borrowing, the Borrowers
shall
be in compliance with the limitation set forth in the proviso
to the first
sentence of Section 2.03(a).
(c) Within
the limits
and on the conditions set forth in this Section 2.03, any Borrower may from
time to time borrow under Section 2.03(a), repay pursuant to
Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow
under Section 2.03(a).
(d) The
Borrower to
which any particular Competitive Bid Borrowing is made shall have no right
to
prepay the principal amount of any Competitive Bid Advance (or any portion
thereof) unless, and then only on the terms, specified by such Borrower for
such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to Section 2.03(a)(i) and, if applicable, set forth in
the Competitive Bid Note evidencing such Competitive Bid Advance.
-
18 -
(e) The
Borrower to
which any particular Competitive Bid Borrowing is made shall pay interest
on the
unpaid principal amount of each Competitive Bid Advance from the date of
such
Competitive Bid Advance to the date the principal amount of such Competitive
Bid
Advance is repaid in full, at the rate of interest for and in the Optional
Currency of such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered pursuant
to
Section 2.03(a)(ii), payable on the interest payment date or dates
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and, if applicable, provided in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(f) Each
Borrower
agrees that upon notice by any Lender to such Borrower (with a copy of such
notice to the Agent) to the effect that a promissory note or other evidence
of
indebtedness is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) any Competitive
Bid
Advance owing to, or to be made by, such Lender as part of a Competitive
Bid
Borrowing, such Borrower shall promptly execute and deliver to such Lender
a
separate promissory note, in substantially the form of Exhibit
F-3
hereto (each, a
“Competitive
Bid
Note”),
payable to the
order of such Lender in a principal amount equal to the amount of indebtedness
of such Borrower resulting from such Competitive Bid Advance.
SECTION
2.04 Facility
Fees.
(a) The
Initial
Borrower agrees to pay to the Agent for the account of each Lender a facility
fee (a “Facility
Fee”)
in Dollars on
the aggregate amount of such Lender’s Commitments, from the Closing Date in the
case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case
of
each other Lender until the Termination Date, at a rate per annum equal to
0.025% per annum, payable in arrears quarterly on the last day of each March,
June, September and December and on the Termination Date.
-
19 -
(b) Unless
the Initial
Borrower shall have notified the Agent in writing on or before 9:00 A.M.
(New
York City time) on the Business Day immediately preceding the last day of
each
March, June, September and December and the Termination Date, that it will
pay,
in cash, the Facility Fees that are due and payable by it on such date, the
Lenders will be deemed to have made Tranche A Advances and/or Tranche B
Advances, as appropriate, on such date in an amount equal to the Facility
Fees
that would otherwise be due and payable on such date, in each case which
Revolving Credit Advance, unless the Initial Borrower has otherwise notified
the
Agent in writing on or before such Business Day, shall be a Eurocurrency
Rate
Advance denominated in Dollars having an initial Interest Period of one month.
Each Revolving Credit Advance made pursuant to this Section 2.04(b) shall
be deemed to have made pursuant to the Commitments and shall be subject to
the
limitations that the aggregate outstanding principal amount of the Tranche
A
Advances may at no time exceed the amount of the Tranche A Facility then
in
effect and the aggregate outstanding principal amount of the Tranche B Advances
may at no time exceed the amount of the Tranche B Facility then in
effect.
SECTION
2.05 Termination
or
Reduction of the Commitments.
(a) Optional.
The Initial
Borrower shall have the right, upon at least three Business Days’ notice to the
Agent, to terminate in whole or reduce in part the Unused Tranche A Commitments
or the Unused Tranche B Commitments of the Lenders, provided
that each partial
reduction shall be in the aggregate amount of $10,000,000; and provided,
further,
that the Initial
Borrower, in its sole discretion, may elect to effect such termination or
reduction on a non-ratable basis with respect to the Unused Tranche A
Commitments or the Unused Tranche B Commitments of one or more Lenders that
are
Affiliates of a Borrower (it being understood that such termination or reduction
shall be on a ratable basis as to all other Lenders).
(b) Mandatory.
(i) The
Commitments shall automatically terminate on the Termination Date.
(ii) In
the event the
Transaction Termination Date occurs, the Commitments shall be reduced to
zero on
the date which is 30 Business Days after the Transaction Termination
Date.
(iii) The
Commitments
shall be automatically reduced pro rata on each date on which the prepayment
of
Advances is required to be made pursuant to Section 2.10(b)(iii) by an
amount equal to 75% of the amount of the net cash proceeds received by the
Borrowers from any issuance of any publicly traded bonds, debentures, or
similar
debt securities described in such Section 2.10(b)(iii).
SECTION
2.06 Repayment
of
Advances.
(a) Revolving
Credit
Advances.
Each Borrower
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of all Revolving Credit Advances
made to it that are then outstanding.
(b) Repayment
of
Competitive Bid Advances.
Each Borrower
shall repay to the Agent, for the account of each Lender that has made a
Competitive Bid Advance, the aggregate outstanding principal amount of each
Competitive Bid Advance made to such Borrower and owing to such Lender on
the
earlier of (i) the maturity date therefor, in the case of any such
Competitive Bid Advance that is a Fixed Advance, or the last day of the Interest
Period therefor, in the case of any such Competitive Bid Advance that is
a
Eurocurrency Rate Advance, in each case as specified in the related Notice
of
Competitive Bid Borrowing delivered pursuant to Section 2.03(a)(i) and, if
applicable, provided in the Competitive Bid Note evidencing such Competitive
Bid
Advance, and (ii) the Termination Date.
SECTION
2.07 Interest
on
Revolving Credit Advances.
(a) Scheduled
Interest.
Subject to the
provisions of Section 2.07(c), each Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance made to it that
is
owing to each Lender from the date of such Revolving Credit Advance until
such
principal amount shall be paid in full, at the following rates per
annum:
(i) Base
Rate
Advances.
During such
periods as such Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Utilization Fee, if any, in effect from time to time, payable
in arrears on each Interest Payment Date with respect to such Base Rate
Advance.
(ii) Eurocurrency
Rate Advances.
During such
periods as such Revolving Credit Advance is a Eurocurrency Rate Advance,
a rate
per annum equal at all times during each Interest Period for such Advance
to the
sum of (x) the Eurocurrency Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time plus
(z) the Utilization Fee, if any, in effect from time to time, payable in
arrears on each Interest Payment Date with respect to such Eurocurrency Rate
Advance.
-
20 -
(b) Default
Interest.
Each Borrower
shall pay interest on:
(i) any
portion of the
unpaid principal amount of each Revolving Credit Advance made to it that
is
owing to each Lender that is not paid when due, from the date such amount
shall
be due until such amount shall be paid in full, payable in arrears on the
date
such amount shall be paid in full and on demand, at a rate per annum equal
at
all times to 2% per annum above the rate per annum required to be paid on
such
Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above, as the
case may be;
(ii) any
portion of the
unpaid principal amount of each Competitive Bid Advance made to such Borrower
and owing to any Lender, payable in arrears on the date or dates interest
is
payable on such Competitive Bid Advance, at a rate per annum equal at all
times
to 2% per annum above the rate per annum required to be paid on such Competitive
Bid Advance in the offer made by such Lender pursuant to
Section 2.03(a)(ii) and accepted by such Borrower under
Section 2.03(a)(v), and
(iii) to
the fullest
extent permitted by law, the amount of any interest, fee or other amount
payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at
all
times to 2% per annum above the rate per annum required to be paid on Base
Rate
Advances pursuant to clause (a)(i) above.
(c) Capitalization
of Interest.
Anything
contained in this Agreement to the contrary notwithstanding, unless the
appropriate Borrower has notified the Agent in writing on or before 9:00
A.M.
(New York City time) on the Business Day immediately preceding any Interest
Payment Date or date of a prepayment pursuant to Section 2.10(b)(i), that
it will pay, in cash, the interest applicable to any Revolving Credit Advance,
including any applicable Utilization Fee, that is due and payable by it on
such
Interest Payment Date in accordance with Section 2.07(a) or on such
prepayment date in accordance with Section 2.10(b)(i), as applicable, the
Lenders will be deemed to have made Tranche A Advances and/or Tranche B
Advances, as appropriate, on such Interest Payment Date or prepayment date,
as
applicable, in an amount equal to the aggregate amount of interest, including
any applicable Utilization Fee, that would otherwise be due and payable on
such
date, which Revolving Credit Advances shall, unless such Borrower has otherwise
notified the Agent in writing on or before such Business Day, (i) be of the
same
Type and Optional Currency as the Advance (the “Reference
Advance”)
in respect of
which such interest (including any applicable Utilization Fee) shall have
accrued (in each case after giving effect to any Conversion of the Reference
Advance on such Interest Payment Date), and (ii) if such Revolving Credit
Advance is a Eurocurrency Rate Advance, have an initial Interest Period of
the
same duration as the Interest Period commencing on such Interest Payment
Date
with respect to the Reference Advance. Each Revolving Credit Advance made
pursuant to this Section 2.07(c) shall be deemed to have been made pursuant
to the Commitments and shall be subject to the limitations that the aggregate
outstanding principal amount of the Tranche A Advances may at no time exceed
the
amount of the Tranche A Facility then in effect and the aggregate outstanding
principal amount of the Tranche B Advances may at no time exceed the amount
of
the Tranche B Facility then in effect.
SECTION
2.08 Interest
Rate
Determination.
(a) Each
Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining
any
such interest rate, the Agent shall determine such interest rate on the basis
of
timely information furnished by the remaining Reference Banks. The Agent
shall
give prompt notice to each of the Borrowers and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.07(a)(i) or
(ii), and the rate, if any, furnished by each Reference Bank for the purpose
of
determining the interest rate under Section 2.07(a)(ii).
-
21 -
(b) If,
with respect to
any Eurocurrency Rate Advances, the Required Lenders in good faith notify
the
Agent that the Eurocurrency Rate for any Interest Period for such Advances
will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurocurrency Rate Advances for such Interest
Period, the Agent shall forthwith so notify each of the Borrowers and the
Lenders, whereupon (i)(A) each Eurocurrency Rate Advance denominated in
Dollars will automatically Convert into Base Rate Advances, and (B) each
Eurocurrency Rate Advance denominated in Euros will automatically be exchanged
for an Equivalent of Dollars and Convert into Base Rate Advances, and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
each
of the Borrowers and the Lenders that the circumstances causing such suspension
no longer exist.
(c) If
any Borrower
shall fail to select the duration of any Interest Period for any Eurocurrency
Rate Advances in accordance with the provisions contained in the definition
of
“Interest
Period”
in
Section 1.01, the Agent will forthwith so notify each of the Borrowers and
the Lenders and such Advances will automatically, on the last day of the
then
existing Interest Period therefor, Convert into Eurocurrency Rate Advances
denominated in the same Optional Currency and having an Interest Period of
one
week.
(d) On
the date on
which the aggregate unpaid principal amount of Eurocurrency Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, in respect of Advances denominated in
Dollars, or (euro)10,000,000, in respect of Advances denominated in Euros,
such
Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in Euros, be exchanged for an
Equivalent amount of Dollars and Convert into Base Rate Advances.
(e) Upon
the occurrence
and during the continuance of any Event of Default, (i) each Eurocurrency
Rate Advance will, upon the written request of the Agent (at the request
of the
Required Lenders), on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
be Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in Euros, be exchanged for an Equivalent amount of
Dollars and be Converted into a Base Rate Advance and (ii) the obligation
of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances
shall be suspended.
(f) If
either, with
respect to Eurocurrency Rate Advances denominated in Dollars, the Moneyline
Telerate Markets Page 3750, or, with respect to Eurocurrency Rate Advances
denominated in Euros, the Page 248 of the Moneyline Telerate Service, is
unavailable and, in each such case, fewer than two Reference Banks furnish
timely information to the Agent for determining the applicable Eurocurrency
Rate,
(i) the
Agent shall
forthwith notify the applicable Borrower and the Lenders that the interest
rate
cannot be determined for such Eurocurrency Rate Advances,
(ii) each
such Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance
is denominated in Euros, be prepaid by the applicable Borrower or be
automatically exchanged for an Equivalent amount of Dollars and be Converted
into a Base Rate Advance (or if such Advance is then a Base Rate Advance,
will
continue as a Base Rate Advance), and
-
22 -
(iii) the
obligation of
the Lenders to make Eurocurrency Rate Advances or to Convert Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
each
of the Borrowers and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION
2.09 Optional
Conversion of Advances.
Any
Borrower may
subject to the provisions of Sections 2.08 and 2.12, Convert all or any
portion of Revolving Credit Advances under the same Facility of one Type
made to
it and comprising the same Borrowing into Advances of the other Type;
provided,
however,
that (a) any
such Conversion of (i) Base Rate Advances into Eurocurrency Advances denominated
in Dollars or of Eurocurrency Advances of one Interest Period into Eurocurrency
Advances denominated in Dollars and of another Interested Period shall be
made
on notice received no later than 9:00 A.M. (New York City time) on the
Business Day immediately preceding the date of the proposed Conversion, or
(ii) in all other cases, shall be made on notice received no later than
9:00 A.M. (New York City time) on the Business Day of the proposed
Conversion, (b) in the case of any Conversion of Eurocurrency Rate Advances
denominated in Dollars into Base Rate Advances other than on the last day
of an
Interest Period therefor, the Borrower requesting such Conversion shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c), and (c) any Conversion of Base Rate Advances into
Eurocurrency Rate Advances shall be in an amount not less than $10,000,000.
Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) whether the Advances to be
Converted are Tranche A Advances or Tranche B Advances, (iii) the Dollar
denominated Advances to be Converted and (iv) if such Conversion is into
Eurocurrency Rate Advances, the duration of the initial Interest Period for
each
such Advance. Each notice of Conversion shall be irrevocable and binding
on the
Borrower giving such notice.
SECTION
2.10 Prepayments.
(a) Optional. Each
Borrower may, upon at least three Business Days notice to the Agent stating
the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given such Borrower shall, prepay the outstanding principal amount
of
the Tranche A Advances or the Tranche B Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to
the
date of such prepayment on the principal amount prepaid; provided,
however,
that
(i) each partial prepayment shall be in an aggregate principal amount of
$10,000,000, in respect of each prepayment of Revolving Credit Advances
denominated in Dollars, or (euro)10,000,000, in respect of each prepayment
of
Revolving Credit Advances denominated in Euros, and in an integral multiples
of
$1,000,000 or (euro)1,000,000, as applicable, in excess thereof, and
(ii) in the event of any such prepayment of a Eurocurrency Rate Advance,
such Borrower shall be obligated to reimburse the Lenders in respect thereof
pursuant to Section 8.04(c). Notwithstanding anything in the previous
sentence to the contrary, no Borrower may prepay any Competitive Bid Advances
other than in accordance with Section 2.03(d).
(b) Mandatory. (i) If,
on
any date, the Agent notifies the Initial Borrower that, on any Interest Payment
Date, the sum of (A) the aggregate principal amount of all Advances
denominated in Dollars plus (B) the Equivalent in Dollars (determined on
the Business Day immediately preceding such Interest Payment Date) of the
aggregate principal amount of all Advances denominated in Euros then outstanding
exceeds 110% of the aggregate Commitments of the Lenders on such date, one
or
more of the Borrowers (as determined by the Initial Borrower) shall, as soon
as
practicable and in any event within five Business Days after receipt of such
notice, subject to the proviso to this sentence below, prepay the outstanding
principal amount of any such Advances (which may be, at the Initial Borrower’s
election, Tranche A Advances and/or Tranche B Advances) owing by such Borrowers
in an aggregate amount sufficient to reduce such sum to an amount not to
exceed
100% of the aggregate Commitments of the Lenders on such date, together with
any
interest accrued to the date of such prepayment on the aggregate principal
amount of Advances prepaid; provided, however,
that if the
aggregate principal amount of Base Rate Advances outstanding at the time
of such
required prepayment is less than the amount of such required prepayment,
the
portion of such required prepayment in excess of the aggregate principal
amount
of Base Rate Advances then outstanding shall be deferred until the earliest
to
occur of the last day of the Interest Period of the outstanding Eurocurrency
Rate Advances in an aggregate amount equal to the excess of such required
prepayment. The Agent shall give prompt notice of any prepayment required
under
this Section 2.10(b)(i) to each of the Borrowers and the Lenders, and shall
provide prompt notice to each of the Borrowers of any such notice of required
prepayment received by it from any Lender.
-
23 -
(ii) On
each Business
Day, each of the Borrowers shall repay (A) the outstanding Tranche A Advances
by
an amount equal to the excess of the outstanding principal amount of the
Tranche
A Advances over the aggregate Tranche A Commitments after giving effect to
any
reduction of the Tranche A Commitments pursuant to Section 2.05 on the
immediately preceding Business Day and (B) the outstanding Tranche B Advances
by
an amount equal to the excess of the outstanding principal amount of the
Tranche
B Advances over the aggregate Tranche B Commitments after giving effect to
any
reduction of the Tranche B Commitments pursuant to Section 2.05 on the
immediately preceding Business Day.
(iii) Each
Borrower shall
prepay an aggregate principal amount of the Revolving Credit Advances comprising
part of the same Borrowings in an amount equal to 75% of the amount of net
cash
proceeds received by such Borrower from each issuance in the U.S. or European
capital markets of publicly traded bonds, debentures, or similar debt securities
having a maturity in excess of one year.
SECTION
2.11 Increased
Costs.
(a) If,
due to either
(i) the introduction of or any change in or in the interpretation of any
law or regulation enacted or issued after the date of this Agreement or
(ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) issued
after the date of this Agreement, there shall be any material increase in
the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurocurrency Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes (as to which
Section 2.14 shall govern) and (ii) changes in the basis of taxation
of overall net income or overall gross income by the United States or by
the
foreign jurisdiction, state or any political subdivision thereof under the
laws
of which such Lender has any present or former connection, then the applicable
Borrower shall from time to time, within 30 days of written demand by such
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost. A certificate as to the amount of such increased
cost
in reasonable detail and stating the basis upon which such amount has been
calculated and certifying that such Lender’s method of allocating such costs is
fair and reasonable and that such Lender’s demand for payment of such costs
hereunder is not inconsistent with its treatment of other borrowers which,
as a
credit matter, are similarly situated to such Borrower and which are subject
to
similar provisions, submitted to such Borrower and the Agent by such Lender,
shall be conclusive and binding for all purposes, absent error in the
calculation of such amount.
(b) If
any Lender
reasonably determines that compliance with any law or regulation enacted
or
issued after the date of this Agreement, or any guideline or request from
any
central bank or other governmental authority (whether or not having the force
of
law) issued after the date of this Agreement, affects or would affect the
amount
of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
materially increased by or based upon the existence of such Lender’s commitment
to lend hereunder and other commitments of this type, then, within 30 days
of
written demand by such Lender (with a copy of such demand to the Agent),
the
applicable Borrower shall pay to the Agent for the account of such Lender,
from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital
to
be allocable to the existence of such Lender’s commitment to lend hereunder. A
certificate as to the amount of such increased cost in reasonable detail
and
stating the basis upon which such amount has been calculated and certifying
that
such Lender’s method of allocating such costs is fair and reasonable and that
such Lender’s demand for payment of such costs hereunder is not inconsistent
with its treatment of other borrowers which, as a credit matter, are similarly
situated to such Borrower and which are subject to similar provisions, submitted
to such Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent error in the calculation of such amount.
-
24 -
(c) Before
making any
demand under this Section 2.11, each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of,
such
increased cost and would not, in the reasonable judgment of such Lender,
be
otherwise disadvantageous to such Lender.
(d) If
any Lender shall
subsequently recoup any costs (other than from a Borrower) for which such
Lender
has theretofore been compensated by a Borrower under this Section 2.11,
such Lender shall remit to such Borrower an amount equal to the amount of
such
recoupment.
SECTION
2.12 Illegality.
Notwithstanding
any
other provision of this Agreement, if any Lender shall notify the Agent that
the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency
Rate
Advances in Dollars or Euros or to fund or maintain Eurocurrency Rate Advances
in Dollars or Euros hereunder, (a) each Eurocurrency Rate Advance, as the
case may be, will automatically, upon such demand, (i) if such Eurocurrency
Rate Advance is denominated in Dollars, Convert into a Base Rate Advance
and
(ii) if such Eurocurrency Rate Advance is denominated in Euros, be
exchanged for an Equivalent amount of Dollars and Convert into a Base Rate
Advance, and (b) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Advances into Eurocurrency Rate Advances shall be
suspended until the Agent shall notify each of the Borrowers and the Lenders
that the circumstances causing such suspension no longer exist; provided,
however,
that before
making any such demand, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate
a
different Eurocurrency Lending Office if the making of such a designation
would
allow such Lender or its Eurocurrency Lending Office to continue to perform
its
obligations to make Eurocurrency Rate Advances or to continue to fund or
maintain Eurocurrency Rate Advances and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION
2.13 Payments
and
Computations.
(a) Each
Borrower shall
make each payment hereunder and under the Notes, if any, with respect to
principal of, interest on, and other amounts relating to, Advances denominated
in Dollars, irrespective of any right of counterclaim or set-off, not later
than
11:00 A.M. (New York City time) on the day when due in Dollars to the Agent,
by
deposit of such funds to the applicable Agent’s Account in same day funds. Each
Borrower shall make each payment hereunder and under the Notes, if any,
irrespective of any right of counterclaim or set-off, with respect to principal
of, interest on, and other amounts relating to, Advances denominated in Euros,
not later than 11:00 A.M. (London time) on the day when due in Euros to the
Agent, by deposit of such funds to the applicable Agent’s Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or facility fees ratably
(other
than amounts payable pursuant to Section 2.03, 2.11, 2.14 or 8.04(c)) to
the Lenders for the account of their respective Applicable Lending Offices,
and
like funds relating to the payment of any other amount payable to any Lender
to
such Lender for the account of its Applicable Lending Office, in each case
to be
applied in accordance with the terms of this Agreement. Upon its acceptance
of
an Assignment and Acceptance or the effective date of the exercise of the
call
rights in Section 2.18 or the put rights in Section 2.19, as the case may
be,
and, in any such case, its recording of the information contained therein
or
relating thereto in the Register pursuant to Section 8.07(c), from and
after the effective date specified in such Assignment and Acceptance or the
applicable notice delivered pursuant to Section 2.18 or Section 2.19, as
applicable, the Agent shall make all payments hereunder and under the Notes,
if
any, in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make
all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
-
25 -
(b) All
computations of
interest based on the Base Rate shall be made by the Agent on the basis of
a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurocurrency Rate or the Federal Funds Rate and of facility
fees
shall be made by the Agent or the Sub-Agent, as the case may be, on the basis
of
a year of 360 days, in each case for the actual number of days (including
the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of
an
interest rate hereunder shall be conclusive and binding for all purposes,
absent
manifest error.
(c) Whenever
any
payment hereunder or under the Notes, if any, shall be stated to be due on
a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
the
computation of payment of interest or facility fee, as the case may be;
provided,
however,
that, if such
extension would cause payment of interest on or principal of Eurocurrency
Rate
Advances to be made in the next following calendar month, such payment shall
be
made on the next preceding Business Day.
(d) Unless
the Agent or
the Sub-Agent, as the case may be, shall have received notice from the
appropriate Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment in full,
the
Agent or the Sub-Agent, as the case may be, may assume that such Borrower
has
made such payment in full to the Agent or to the Sub-Agent, as the case may
be,
on such date, and the Agent or the Sub-Agent, as the case may be, may, in
reliance upon such assumption, cause to be distributed to each Lender on
such
due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent
or
to the Sub-Agent, as the case may be, each Lender shall repay to the Agent
or to
the Sub-Agent, as the case may be, forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date
such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent or to the Sub-Agent, as the case may be, at (i) the
Federal Funds Rate, in the case of Advances denominated in Dollars, or
(ii) the cost of funds incurred by the Sub-Agent, in respect of such amount
in the case of Advances denominated in Euros.
-
26 -
SECTION
2.14 Taxes.
(a) Each
Borrower shall
only be required to pay or reimburse any Lender or the Agent for present
or
future taxes, levies, imposts, deductions, charges or withholdings arising
from
or in connection with any payments made by any Borrower under this Agreement
or
any of the other Loan Documents, or any liabilities with respect to the
foregoing (collectively, “Taxes”),
other than
Excluded Taxes. If any Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any of the other
Loan
Documents to any Lender or the Agent, (i) such Borrower shall make such
deductions in respect of Taxes, (ii) such Borrower shall pay the full
amount deducted in respect of Taxes to the relevant taxation authority or
other
governmental or regulatory authority in accordance with applicable law, and
(iii) to the extent, there is an increase in any Taxes (other than Excluded
Taxes) imposed on such Lender or the Agent as a result of this Agreement
or any
of the other Loan Documents (such increased amount being the “Non-Excluded
Taxes”
of
such Lender or
the Agent), the sum payable by such Borrower shall be increased as may be
necessary so that after making all required deductions of Non-Excluded Taxes
such Lender or the Agent (as the case may be) receives an amount equal to
the
sum it would have received had no such deductions been made in respect of
Non-Excluded Taxes. Within 30 days after the date of any payment of Non-Excluded
Taxes by any Borrower, such Borrower shall furnish to the Agent, at its address
referred to in Section 8.02, the original or a copy of a receipt evidencing
such payment. For purposes of this section 2.14, the term “Change in Law” shall
mean the adoption of any law, rule, regulation, court decision or precedential
administrative guidance after the date of this Agreement.
(b) Each
of the
Borrowers shall indemnify each Lender and the Agent for, and hold each of
them
harmless against, the full amount of Non-Excluded Taxes paid by such Lender
or
the Agent, as the case may be. This indemnification shall be made within
90 days
from the date on which such Lender or the Agent, as the case may be, makes
written demand therefor and provides adequate documentary evidence of payment
thereof.
(c) Each
Lender and the
Agent shall deliver or cause to be delivered to any requesting Borrower required
to withhold under section 1441 or 1442 or comply with any information reporting
or backup withholding requirements of the U.S. Internal Revenue Code of 1986,
as
amended, or the regulations thereunder, the following properly completed
and
duly executed documents:
(i) if
such Lender or
the Agent is not a United States Person, a complete and executed (A) U.S.
Internal Revenue Form W-8BEN with Part II completed in which Lender claims
and
validly establishes the benefits of a tax treaty with the United States
providing for a zero or reduced rate of withholding (or any successor forms
thereto), including all appropriate attachments or (B) a U.S. Internal
Revenue Service Form W-8ECI (or any successor forms thereto);
(ii) if
such Lender or
the Agent is a natural person, a complete and executed (A) U.S. Internal
Revenue Service Form W-8BEN (or any successor forms thereto) and a certificate,
in substantially the form of Exhibit
E
hereto (a “Section
2.14
Certificate”),
or
(B) U.S. Internal Revenue Service Form W-9 (or any successor forms
thereto);
(iii) if
such Lender or
the Agent is organized under the laws of the United States, any State thereof,
or the District of Columbia, (A) a complete and executed U.S. Internal
Revenue Service Form W-9 (or any successor forms thereto), including all
appropriate attachments or (B) if such Person is disregarded for federal
income tax purposes, the documents that would be required under clause (i),
(ii), this clause (iii), (iv), (v) or (vi) of this Section 2.14(c) with respect
to its beneficial owner as if such beneficial owner were a Lender;
-
27 -
(iv) if
such Lender or
the Agent (A) is not organized under the laws of the United States, any
State thereof, or the District of Columbia and (B) is treated as a
corporation for U.S. federal income tax purposes, a complete and executed
U.S.
Internal Revenue Service Form W-8BEN establishing a zero rate of withholding
(or
any successor forms thereto) and a Section 2.14 Certificate;
(v) if
such Lender or
the Agent (A) is treated as a partnership or other non-corporate entity,
and (B) is not organized under the laws of the United States, any State
thereof, or the District of Columbia, (1) a complete and executed U.S.
Internal Revenue Service Form W-8IMY (or any successor forms thereto) (including
all required documents and attachments) and (2) a Section 2.14 Certificate,
and, without duplication, with respect to each of its beneficial owners and
the
beneficial owners of such beneficial owners looking through chains of owners
to
individuals or entities that are treated as corporations for U.S. federal
income
tax purposes (all such owners, “beneficial
owners”),
the documents
that would be required by clause (i), (ii), (iii), (iv), this clause (v)
and/or
clause (vi) of this Section 2.14(c) with respect to each such beneficial
owner if such beneficial owner were Lender, provided,
however,
that no such
documents will be required with respect to a beneficial owner to the extent
the
actual Lender or the Agent is determined to be in compliance with the
requirements for certification on behalf of its beneficial owner as may be
provided in applicable U.S. Treasury Regulations, or the requirements of
this
clause (v) of Section 2.14(c) are otherwise determined to be
unnecessary (all such determinations under this clause (v) of
Section 2.14(c) to be made in the sole discretion of the Initial Borrower);
or
(vi)
(A) if such Lender
or the Agent is disregarded for U.S. federal income tax purposes, such Person
shall deliver the document that would be required by this clause (vi), or
by clause (i), (ii), (iii), (iv), or (v) of Section 2.14(c) with respect to
its sole owner if such sole owner were such Lender or the Agent, or (B) if
such
Lender or the Agent is not a United States person and is acting in the capacity
as an “intermediary” (as defined in U.S. Treasury Regulations), (1) a
complete and executed U.S. Internal Revenue Service Form W-8IMY (or any
successor form thereto) (including all required documents and attachments),
and
(2) if such intermediary is a “non-qualified intermediary” (as defined in U.S.
Treasury Regulations), from each person upon whose behalf the “non-qualified
intermediary” is acting, the documents that would be required by clause (i),
(ii), (iii), (iv), (v) or this clause (vi) of Section 2.14(c) with respect
to each such Person if each such Person were Lender.
In
addition, each
Lender or the Agent, shall provide any requesting Borrower with such other
forms, certificates and documentation that such Lender or the Agent is legally
entitled to furnish as may be necessary or appropriate to obtain any reduction
of or exemption from any withholding or other Tax imposed by any governmental
authority on payments made by such Borrower under any Loan
Document.
Each
Lender and the
Agent shall provide the appropriate forms, certificates and other documentation
described in this Section 2.14(c) (x) prior to becoming a party to this
Agreement; (y) upon a Change in Law or circumstances requiring or making
appropriate a new or additional form, certificate or documentation; and
(z) whenever reasonably requested by any of the Borrowers or the Agent. If
the forms referred to above in this Section 2.14(c) that are provided by a
Lender at the time such Lender becomes a party to this Agreement indicate
a
withholding tax rate in excess of zero on payments under this Agreement to
be
received by such Lender from a Borrower organized in a Covered Jurisdiction,
such withholding tax at such rate shall be treated as Excluded Taxes unless
and
until such Lender provides all such forms, duly completed and delivered,
establishing that a lesser rate applies, whereupon such withholding tax at
such
lesser rate shall be considered Excluded Taxes solely for the periods governed
by such form. If the forms referred to above in this Section 2.14(c) that
are
provided by a Lender at the time such Lender becomes a party to this Agreement
indicate a withholding tax rate in excess of zero on payments under this
Agreement to be received by such Lender from a Borrower that is not organized
in
a Covered Jurisdiction, such withholding tax at such rate shall be treated
as
Non-Excluded Taxes solely for the periods governed by such form. If,
however, on the
date a Lender assigns all or a portion of its commitments under this Agreement
to an Affiliate thereof, such Lender assignor was entitled to additional
amounts
under Section 2.14(a), then the
related Lender
assignee shall be entitled to additional amounts solely to the extent that
amounts payable to such Lender assignee are themselves subject to a withholding
tax imposed as a direct result of a Change in Law occurring after the date
on
which the Lender assignor became a party to this Agreement. Any additional
Taxes
imposed on any Lender as a direct result of a change in the Applicable Lending
Office of such Lender shall be treated as Excluded Taxes except to the extent
that (I) any such additional Non-Excluded Taxes are imposed as a result of
a Change in Law occurring after the date of change of its Applicable Lending
Office, or (II) such change is made at the request of the Initial Borrower
in which case the additional Non-Excluded Taxes shall be treated as Non-Excluded
Taxes imposed by reason of a Change in Law and indemnified pursuant to
subsection (a) above.
-
28 -
(d) For
any period with
respect to which any Lender or the Agent has failed to provide the Initial
Borrower with the duly completed forms, certificates or other documents
described in Section 2.14(c) or any successor thereto (other than if such
failure is due to such Lender or the Agent, as the case may be, not being
legally entitled to provide any such form, certificate or other document
or if
it is legally inadvisable for such Lender or the Agent, as the case may be,
to
deliver such form, certificate or other document), such Lender or the Agent
shall not be entitled to the payment of any additional amounts pursuant to
Section 2.14(a) or to indemnification under Section 2.14(b) with
respect to Non-Excluded Taxes by reason of such failure, and such Taxes shall
be
considered Excluded Taxes; provided,
however,
that should any
Lender or the Agent become subject to Non-Excluded Taxes because of its failure
to deliver a form required hereunder, the appropriate Borrower shall, at
the
Agent’s or such Lender’s sole expense, take such steps (consistent with legal
and regulatory restrictions) as such Lender or the Agent shall reasonably
request to assist such Person in recovering such Non-Excluded Taxes from
the
proper governmental or regulatory authority. However, none of the Borrowers
will
be required to take any action that would be inadvisable or overly
burdensome.
(e) Each
Lender and the
Agent hereby agrees that, upon the occurrence of any circumstances entitling
such Person to any additional amounts under Section 2.14(a) or to
indemnification under Section 2.14(b), such Lender or the Agent shall use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions), at its own expense, to designate a different Applicable Lending
Office if the making of such a change would avoid the need for, or reduce
the
amount of, any such additional amounts or indemnification that may thereafter
accrue.
(f) If
any Lender or
the Agent entitled to additional compensation under any of the foregoing
provisions of this Section 2.14 shall fail to designate a different
Applicable Lending Office that avoids the need for additional compensation
as
provided in Section 2.14, then the Initial Borrower may cause such Lender
or the Agent to (and, if the Initial Borrower so demands, such Lender or
the
Agent shall) assign all of its rights and obligations under this Agreement
to
one or more other Persons identified by any Borrower in accordance with the
terms of Section 8.07(a).
(g) If
any Lender or
the Agent determines that it has received a refund of or credit against any
Taxes as to which it has been indemnified by any Borrower or with respect
to
which any Borrower has paid additional amounts pursuant to this Section 2.14,
it shall pay over
such refund or credit to Borrower (but only to the extent of amounts paid
by
such Borrower under this Section
2.14),
net of all out-of-pocket expenses of such Lender or the Agent and without
interest (other than any interest paid by the relevant governmental or
regulatory authority with respect to such refund or credit); provided,
however,
that such
Borrower, upon the request of such Lender or the Agent, agrees to repay the
amount paid over to such Borrower to such Lender or the Agent in the event
such
Lender or the Agent is required to repay such refund to such governmental
authority or such credit is subsequently denied. Nothing in this Section
2.14(g)
shall be deemed to require the Agent or any Lender to provide copies of tax
returns or other confidential tax information.
-
29 -
(i) Each
Lender and the
Agent shall take all actions reasonably requested by any Borrower to assist
such
Borrower, at the sole expense of such Borrower, to recover from the relevant
taxation authority or other governmental authority any Taxes in respect of
which
amounts were paid by such Borrower pursuant to Section 2.14(a) or
Section 2.14(b).
SECTION
2.15 Sharing
of
Payments, Etc.
If
any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise
of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in
excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase
from
the other Lenders such participations in the Revolving Credit Advances owing
to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided,
however,
that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender
shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender’s ratable share (according to the
proportion of (i) the amount of such Lender’s required repayment to
(ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect
of
the total amount so recovered. Each of the Borrowers agrees that any Lender
so
purchasing a participation from another Lender pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation.
SECTION
2.16 Use
of
Proceeds.
The
proceeds of the
Advances shall be available (and each Borrower agrees that it shall use such
proceeds) for general corporate purposes of each Borrower and its Subsidiaries,
including to finance acquisitions, providing backup liquidity to support
the
issuance of commercial paper and the consummation of the
Transaction.
SECTION
2.17 Evidence
of
Debt.
(a) Each
Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of each Borrower to such Lender resulting from each Advance
owing to such Lender from time to time, including the amounts of principal
and
interest payable and paid to such Lender from time to time on account thereof.
Each Borrower agrees that upon notice by any Lender to such Borrower (with
a
copy of such notice to the Agent) to the effect that a promissory note or
other
evidence of indebtedness is required or appropriate in order for such Lender
to
evidence (whether for purposes of pledge, enforcement or otherwise) the
Revolving Credit Advances owing to, or to be made by, such Lender, such Borrower
shall promptly execute and deliver to such Lender promissory notes of such
Borrower payable to the order of such Lender, in substantially the forms
of
Exhibit F-1
hereto (a
“Tranche
A
Note”)
and of
Exhibit F-2
hereto (a
“Tranche
B
Note”),
in a principal
amount equal to the respective Tranche A Commitment and Tranche B Commitment,
respectively, of such Lender.
-
30 -
(b) The
Register
maintained by the Agent pursuant to Section 8.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made
hereunder, the Type of Advances comprising such Borrowing, whether such Advances
are Tranche A Advances or Tranche B Advances and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower
to each
Lender hereunder and (iv) the amount of any sum received by the Agent from
such Borrower hereunder and each Lender’s share thereof.
(c) Entries
made in
good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the amount of principal and interest
due
and payable or to become due and payable from each Borrower to, in the case
of
the Register, each Lender and, in the case of such account or accounts, such
Lender, under this Agreement, absent manifest error; provided,
however,
that the failure
of the Agent or such Lender to make an entry, or any finding that an entry
is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of any Borrower under this
Agreement.
SECTION
2.18 Call
Right of
Affiliates.
Any
Affiliate of a
Borrower may, upon at least one Business Day’s notice to the Agent stating the
proposed date and aggregate principal amount of the purchase, and, if such
notice is given such Affiliate shall, purchase from the Lenders at par the
outstanding principal amount of Tranche A Advances or Tranche B Advances
comprising part of the same Borrowings in whole or in part, and assume from
the
Lenders Tranche A Commitments or Tranche B Commitments, as the case may be,
in
an amount at least equal to the principal amount of the Advances so purchased;
provided
that the Initial
Borrower, in its sole discretion, may elect to effect such purchase on a
non-ratable basis with respect to the Advances and Commitments under the
applicable Facility held by one or more Lenders that are Affiliates of a
Borrower (it being understood that such purchase shall be on a ratable basis
as
to all other Lenders). After giving effect to each such purchase, the purchasing
Affiliate shall be treated as a Lender to the extent of the rights and
obligations so purchased, except as otherwise expressly set forth herein.
Each
purchase made pursuant to this Section 2.18 shall also be subject to
Section 8.07(a).
SECTION
2.19 Put
Right of
Affiliates.
Any
Lender that is
an Affiliate of a Borrower shall be entitled, upon at least two Business
Day's
notice to the Agent, to sell and assign to the other Lenders, and each of
the
Lenders irrevocably agrees to purchase, at par all or a portion of the
outstanding Tranche A Advances or Tranche B Advances owing to such Affiliate
of
the Borrower, and to assign to the other Lenders Tranche A Commitments or
Tranche B Commitments, as the case may be, in an amount at least equal to
the
principal amount of the Advances so sold and assigned; provided
that each such
sale and assignment shall be made to the other Lenders (based on their respect
Commitments under the applicable Facility); provided,
further,
that the Initial
Borrower, in its sole discretion, may elect to effect such sale and assignment
on a non-ratable basis with respect to the Advances and Commitments under
the
applicable Facility held by one or more Lenders that are Affiliates of a
Borrower (it being understood that such sale and assignment shall be on a
ratable basis as to all other Lenders). Any notice delivered by a Lender
that is
an Affiliate of a Borrower pursuant to this Section 2.19 shall specify (i)
the
effective date of such sale and assignment and (ii) the amount of Revolving
Credit Advances under each Facility subject each such sale and assignment.
After
giving effect to each such sale and assignment, the selling Affiliate shall
cease to be a Lender to the extent of the right and obligations so sold and
assigned. On or promptly following the effective date of any sale and assignment
pursuant to this Section 2.19, the Agent shall notify the Lenders of the
effective date thereof and shall distribute a revised Schedule II hereto
reflecting each such sale and assignment.
-
31 -
ARTICLE
III
CONDITIONS
TO
EFFECTIVENESS AND LENDING
SECTION
3.01 Conditions
Precedent to Initial Borrowing.
The
initial
Borrowing of Advances under this Agreement shall be made on and as of the
first
date (the “Closing
Date”)
on which the
following conditions precedent have been satisfied:
(a) All
amounts owing
by the Initial Borrower under the Existing Credit Agreement shall have been,
or
concurrently with the initial Borrowing hereunder shall be, paid in full,
and
all commitments of the lenders thereunder shall have been, or concurrently
with
the initial Borrowing hereunder shall be, terminated in accordance with the
terms of the Existing Credit Agreement.
(b) The
Initial
Borrower shall have paid all accrued fees and expenses of the Agent (including
reasonable fees and expenses of counsel to the Agent).
(c) On
the Closing
Date, the following statements shall be true and the Agent shall have received
for the account of each Lender a certificate signed by a duly authorized
representative of the Initial Borrower, dated the Closing Date, stating
that:
(i) The
representations
and warranties contained in Section 4.01 are correct in all material
respects on and as of the Closing Date, and
(ii) No
event has
occurred and is continuing that constitutes a Default.
(d) The
Agent shall
have received on or before the Closing Date the following, each dated such
date,
in form and substance satisfactory to the Agent and in sufficient copies
for
each Lender:
(i) Certified
copies of
each of the charter or other organizational documents of the Initial Borrower
and of resolutions of the Initial Borrower approving this Agreement and of
all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, together with an English
translation of each of the foregoing documents that are not otherwise being
provided in English.
(ii) A
certificate of an
authorized representative of the Initial Borrower certifying the names and
true
signatures of the other authorized representatives of the Initial Borrower
authorized to sign this Agreement and the other documents to be delivered
hereunder.
(iii) The
Pledge
Agreement and the Registration Rights Agreement, in each case duly executed
and
delivered by the Initial Borrower, together with (A) proper financing
statements under the Uniform Commercial Code and similar requirements of
law
that are necessary to perfect and protect the Mortgage created or purported
to
be created under the Pledge Agreement, covering all collateral described
therein, and (B) proper termination statements under the Uniform Commercial
Code and similar requirements of law that are necessary to terminate or amend
existing liens on all collateral described therein granted in favor of the
Existing Agent under the terms of the Existing Pledge Agreement, in each
case,
in appropriate form for filing or recording.
(iv) Favorable
written
opinions of counsel for the Initial Borrower, in the form of
(A) Exhibit
C-1
hereto from
Luxembourg counsel to the Initial Borrower, (B) Exhibit
C-2
hereto from the
Initial Borrower’s special counsel, and (C) Exhibit
C-3
hereto from
Cadwalader, Xxxxxxxxxx & Xxxx LLP, special counsel to the Initial
Borrower.
-
32 -
(v) A
favorable opinion
of Shearman & Sterling LLP, counsel for the Agent, in form and substance
satisfactory to the Agent.
SECTION
3.02 Conditions
Precedent to Each Borrowing.
The
obligation of
each Lender to make any Advance on the occasion of each Borrowing (other
than
any deemed Revolving Credit Borrowing pursuant to Section 2.04(b) or
Section 2.07(c)) shall be subject to the conditions precedent
that:
(a) on
the date of such
Borrowing the following statements shall be true (and each of the giving
of the
applicable Notice of Revolving Credit Borrowing or Notice of Competitive
Bid
Borrowing, as applicable, and the acceptance by any Borrower of the proceeds
of
such Borrowing shall constitute a representation and warranty by the applicable
Borrower that on the date of such Borrowing such statements are
true):
(i) the
representations
and warranties contained in Section 4.01 (except the representations set
forth in the last sentence of subsection (e) thereof and in
subsection (f) thereof) are correct in all material respects on and as of
the date of such Borrowing, before and after giving effect to such Borrowing
and
to the application of the proceeds therefrom, as though made on and as of
such
date; and
(ii) no
event has
occurred and is continuing, or would result from such Borrowing or from the
application of the proceeds therefrom, that constitutes a Default;
and
(b) the
Agent shall
have received such other approvals, opinions or documents as the Required
Lenders through the Agent may reasonable request.
SECTION
3.03 Determinations
Under Section 3.01.
For
purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an
officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Initial
Borrower, by notice to the Lenders, designates as the proposed Closing Date,
specifying its objection thereto.
ARTICLE
IV
REPRESENTATIONS
AND
WARRANTIES
SECTION
4.01 Representations
and Warranties of the Borrowers.
Each
of the
Borrowers represents and warrants as to itself as follows:
(a) Such
Borrower and
its Guarantor, if any, is a corporation, general partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation and is duly
qualified and in good standing in each jurisdiction wherein the failure to
so
qualify would have a material adverse effect on the financial condition or
results of operations of such Borrower and its Subsidiaries, taken as a whole.
Each of the Subsidiaries of such Borrower and its Guarantor, if any, is duly
organized and validly existing under the laws of its jurisdiction of
incorporation or formation.
-
33 -
(b) The
execution,
delivery and performance by such Borrower and its Guarantor, if any, of each
Loan Document to which it is a party delivered hereunder, and the consummation
of the transactions contemplated hereby, are within their respective corporate
or other similar organization powers, have been duly authorized by all necessary
corporate or other similar organization action, and do not contravene
(i) their respective charter, by-laws or other organizational documents or
(ii) law or any material contractual restriction binding on or affecting
such Borrower or such Guarantor, as the case may be.
(c) No
authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the
due
execution, delivery and performance by such Borrower and its Guarantor, if
any,
of this Agreement or any other Loan Document to which it is a party, except
for
any such authorizations, approvals, actions, notices or filings as have already
been made or obtained and are in full force and effect.
(d) This
Agreement has
been, and each other Loan Document when delivered hereunder will have been,
duly
executed and delivered by such Borrower and its Guarantor, if any, party
thereto. This Agreement is, and each other Loan Document to which it is a
party
when delivered hereunder will be, the legal, valid and binding obligation
of
such Borrower and its Guarantor, if any, enforceable against it in accordance
with their respective terms.
(e) Except
for the
Transaction or as disclosed in writing to the Agent prior to the Closing
Date,
since December 31, 2004, there has been no Material Adverse
Change.
(f) There
is no pending
or overtly threatened action, suit, investigation, litigation or proceeding
affecting such Borrower, any of its Subsidiaries or its Guarantor, if any,
before any court, governmental agency or arbitrator that could reasonably
be
expected to adversely affect the legality, validity or enforceability of
any
Loan Document, or the consummation of the transactions contemplated
hereby.
(g) Such
Borrower is
not engaged in the business of extending credit for the purpose of purchasing
or
carrying margin stock (within the meaning of Regulation U issued by the Board
of
Governors of the Federal Reserve System).
(h) Following
application of the proceeds of each Advance, not more than 25% of the value
of
the assets (either of the Borrowers only or of the Borrowers and their
Subsidiaries, taken as a whole) subject to the provisions of Section 5.02(a)
will be margin stock (within the meaning of Regulation U issued by the Board
of
Governors of the Federal Reserve System).
(i) All
written
information (other than financial information, projections, estimates and
other
forward looking statements) heretofore furnished by such Borrower and its
Guarantor, if any, to the Lenders for purposes of or in connection with this
Agreement or any transaction contemplated hereby, taken as a whole, in each
case
as such written information may be amended, modified or supplemented by it
from
time to time, is correct in all material respects and does not omit to state
any
material fact or any fact necessary to make the statements contained therein
not
materially misleading in light of the circumstances under which such statements
were made.
-
34 -
(j) Such
Borrower is
not an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as
amended.
(k) All
of the Advances
and other obligations owing by such Borrower to the Agent and the other Lenders
and under the Credit Agreement and the Notes, if any, rank pari
passu
or
senior to all of
its other senior unsecured indebtedness for money borrowed.
ARTICLE
V
COVENANTS
OF THE
BORROWERS
SECTION
5.01 Affirmative
Covenants.
So
long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
the Initial Borrower will, in the case of clause (d) of this Section 5.01,
and
each of the Borrowers will, in all other cases under this Section:
(a) Compliance
with
Laws, Etc.
Comply, and cause
each of its Subsidiaries and its Guarantors, if any, to comply, in all material
respects, with all applicable laws, rules, regulations and orders, except
where
the failure to so comply would not have a Material Adverse Effect.
(b) Payment
of
Taxes, Etc.
Pay and discharge,
and cause each of its Subsidiaries and its Guarantor, if any, to pay and
discharge, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
property and (ii) all material lawful claims that, if unpaid, might by law
become a Mortgage upon its property; provided,
however,
that none of the
Borrowers, the Subsidiaries of a Borrower or the Guarantors shall be required
to
pay or discharge any such tax, assessment, charge, levy or claim that is
being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Mortgage resulting therefrom
attaches to its property and enforcement, collection, execution, levy or
foreclosure proceedings shall have been commenced with respect
thereto.
(c) Preservation
of
Corporate Existence, Etc.
Preserve and
maintain, and cause each of its Subsidiaries and its Guarantor, if any, to
preserve and maintain, its existence as a corporation, general partnership
or
limited liability company, as applicable, its rights (charter and statutory)
and
franchises; provided,
however,
that
(i) each of the Borrowers, each of their respective Subsidiaries and each
of the Guarantors may consummate any merger, consolidation or transfer, sale
or
lease of its assets as an entirety to any Person not prohibited under
Section 5.02(b), (ii) each of the Borrowers, each of their respective
Subsidiaries and each of the Guarantors may wind up, liquidate or dissolve
any
inactive or immaterial Subsidiary of such Person, (iii) none of the
Borrowers, the Subsidiaries of a Borrower or the Guarantors shall be required
to
preserve any right or franchise if the Board of Directors of such Borrower,
such
Subsidiary or such Guarantor shall determine that the preservation thereof
is no
longer desirable in the conduct of its business, and that the loss thereof
is
not disadvantageous in any material respect to the Loan Parties and their
Subsidiaries, taken as a whole, or the Lenders, and (iv) each of the
Borrowers, each of their respective Subsidiaries and each of the Guarantors
may
reincorporate or otherwise change its legal form so long as (A) the
applicable Borrower provides written notice thereof to the Agent reasonably
promptly following such reincorporation or change (together with certified
copies of each amended charter or other organizational document), and
(B) such reincorporation or change would not result in a Material Adverse
Effect.
-
35 -
(d) Reporting
Requirements.
Deliver to the
Agent (for distribution by the Agent to the Lenders):
(i) within
the time
periods specified in the rules and regulations of the Securities and Exchange
Commission, but only for so long as the Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, as amended,
a
Quarterly Report on Form 10-Q for each of the first three fiscal quarters
of
each fiscal year of the Company and an Annual Report on Form 10-K for each
fiscal year of the Company;
(ii) as
soon as possible
and in any event within five days after the occurrence of each Default or
Event
of Default continuing on the date of such statement, a statement of any Loan
Party setting forth details of such Default or Event of Default and the action
that one or more of the Loan Parties and their Subsidiaries has taken and
propose to take with respect thereto;
(iii) promptly
after the
sending or filing thereof, copies of all reports that any Borrower sends
to any
of its security holders, and copies of all reports and registration statements
that such Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(iv) promptly
after the
commencement thereof, notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting any of the Borrowers or any of
their
Subsidiaries of the type described in Section 4.01(f); and
(v) such
other
information respecting any of the Loan Parties or any of their Subsidiaries
as
the Required Lenders through the Agent may from time to time reasonably
request;
provided,
however,
that in the case
of clauses (i) and (iii) of this subsection (d), each Borrower may
comply with its obligations thereunder by posting the relevant documents
to its
website, to any of the other Borrowers’ websites, to xxx.xxx.xxx,
or to such other
website as notified to the Agent and the Lenders in lieu of delivering hard
copies thereof to the Lenders.
SECTION
5.02 Negative
Covenants.
So
long as any
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
none of the Borrowers shall:
(a) Restrictions
on
Mortgages.
Incur, assume or
guarantee, or permit any of its Subsidiaries or its Guarantor to incur, assume
or guarantee, any Debt (other than the Advances, if applicable) secured by
a
Mortgage on any Principal
Manufacturing Property or
on any Debt of
any of its Subsidiaries unless such Borrower secures, or causes such Subsidiary
or its Guarantor to secure, the Advances equally and ratably with (or prior
to)
such Debt for so long as such Debt is secured; provided,
however,
that the
Borrowers shall not be required to so secure, or cause any of its Subsidiaries
or its Guarantor to so secure, the Advances as provided in this Section 5.02(a)
if after giving effect thereto the aggregate amount of all such Debt so secured
would not exceed 20% of Consolidated Assets of the Loan Parties and their
Included Subsidiaries at the time of such incurrence, assumption or guarantee.
Notwithstanding the foregoing, this Section
5.02(a)
shall
not apply to, and there shall be excluded in computing secured Debt for the
purposes of this Section 5.02(a):
(i) Permitted
Mortgages;
-
36 -
(ii) Mortgages
existing
as of the date hereof;
(iii) Mortgages
granted
in favor of the Company, any of the Borrowers, any of the Guarantors or any
of
their Subsidiaries on all or any portion of the assets of the Loan Parties
and
their Subsidiaries;
(iv) Mortgages
arising
solely from precautionary filings of financing statements under the Uniform
Commercial Code of any jurisdiction (or similar filings and recordings under
equivalent provisions of applicable law);
(v) any
Mortgages existing
on any
Principal Manufacturing Property or Debt at the time such Principal
Manufacturing Property or Debt is acquired by any Loan Party or any of its
Subsidiaries, or on any Principal Manufacturing Property or Debt of any Person
at the time such Person becomes, or is merged into, the Company or any of
its
Subsidiaries;
(vi) purchase
money and
title retention Mortgages, capitalized leases and construction- or
improvement-cost Mortgages and other similar Mortgages; and
(vii) any
extension,
refinancing, renewal or refunding of any Mortgage referred to in
clauses (i) through (vi) of this Section 5.02(a).
(b) Consolidation,
Merger and Sale of Assets.
Consolidate or
merge with or into, or transfer, sell or lease its assets as an entirety
to, or
permit any Guarantor, if any, to consolidate or merge with or into, or transfer,
sell or lease its assets as an entirety to, any Person, unless the Person
(if
other than a Borrower or a Subsidiary of the Company) formed by such
consolidation or into which such Borrower, or such Guarantor is merged or
which
acquires or leases the assets of such Borrower or such Guarantor substantially
as an entirety assumes such Borrower’s or such Guarantor’s obligations under the
Loan Documents (and, upon such assumption, such Person shall be a Borrower
or
Guarantor, as applicable, for all purposes of the Loan Documents), or another
Borrower assumes such Borrower’s obligations, or another Guarantor or the
Company assumes such Guarantor’s obligations, under the Loan Documents;
provided,
that after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing, and such consolidation, merger, transfer, sale or lease
of
assets is not prohibited under the indentures pursuant to which any publicly
held debt of such Borrower or such Guarantor was issued.
ARTICLE
VI
EVENTS
OF
DEFAULT
SECTION
6.01 Events
of
Default.
Each
of the
following events shall constitute an “Event of Default” under this
Agreement:
(a) Any
Borrower shall
fail to pay any principal of any Advance when the same becomes due and payable;
or any Borrower shall fail to pay any interest on any Advance or make any
other
payment of fees payable under this Agreement or any Note within ten days
after
the same becomes due and payable; or any Loan Party shall fail to make any
payment of any other amount payable under any Loan Document, or the Company
shall fail to make any payment of any other amount payable under the P&G
Guaranty, within ten days after the same becomes due and payable;
or
-
37 -
(b) Any
representation
or warranty made by any Loan Party (or any of its authorized representatives)
under or in connection with this Agreement or any of the other Loan Documents
shall prove to have been incorrect in any material respect when made;
or
(c) (i) Any
Borrower shall fail to perform or observe any term, covenant or agreement
contained in, or any Guarantor shall fail to perform or observe any term,
covenant or agreement that any Borrower has agreed to cause such Guarantor
to
perform under, Section 5.01(c) or Section 5.01(d) (other than clauses (d)(i)
or
(d)(iii)), or (ii) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in, or any Guarantor shall fail
to
perform or observe any term, covenant or agreement that any Borrower has
agreed
to cause such Guarantor to perform under, this Agreement or any of the Loan
Documents on its part to be performed or observed if, in the case of this
clause (ii), such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Initial Borrower by the Agent
or any
Lender; or
(d) Any
Borrower or any
of its Subsidiaries or any Guarantor shall admit in writing its inability
to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Borrower
or
any of its Subsidiaries or any Guarantor seeking to adjudicate it a bankrupt
or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial
part
of its property and, in the case of any such proceeding instituted against
it
(but not instituted by it), either such proceeding shall remain undismissed
or
unstayed for a period of 90 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or
any Borrower or any of its Subsidiaries or any Guarantor shall take any
corporate or other action to authorize any of the actions set forth above
in
this subsection (d); or
(e) Any
judgment or
order for the payment of money in excess of $250,000,000 shall be rendered
against any Borrower, any Guarantor or any of the Material Subsidiaries and
not
satisfied and there shall be any period of 60 consecutive days during which
a
stay of enforcement of such unsatisfied judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; provided,
however,
that any such
judgment or order shall not be an Event of Default under this
Section 6.01(e) if and for so long as (i) the amount of such judgment
or order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer,
which shall be rated at least “A” by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such judgment
or order; or
(f) Any
non-monetary
judgment or order shall be rendered against any Borrower or any of its
Subsidiaries or any Guarantor that would have a Material Adverse Effect and
not
resolved, and there shall be any period of 60 consecutive days during which
a
stay of enforcement of such judgment or order, by reason of a pending appeal
or
otherwise, shall not be in effect.
SECTION
6.02 Remedies.
(a) If
any Event of
Default shall occur and be continuing, then, and in any such event, the Agent
(i) shall at the request, or may with the consent, of the Required Lenders,
by notice to each of the Borrowers, declare the obligation of each Lender
to
make Advances to be terminated, whereupon the obligation of each Lender to
make
such Advances shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to each of the
Borrowers, declare the Advances, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of
any
kind, all of which are hereby expressly waived by each of the
Borrowers.
-
38 -
(b) Notwithstanding
anything to the contrary in clause (a) of this Section 6.02, in the
event of an actual or deemed entry of an order for relief with respect to
any
Borrower under the Federal Bankruptcy Code, (i) the obligation of each
Lender to make Advances to such Borrower shall automatically be terminated
and
(ii) the Advances made to such Borrower, all interest thereon and all
amounts payable under this Agreement with respect thereto shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by each of the
Borrowers.
ARTICLE
VII
THE
AGENT
SECTION
7.01 Authorization
and Action.
Each
Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and
to exercise such powers and discretion under this Agreement and the other
Loan
Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement or the other
Loan
Documents (including, without limitation, enforcement or collection of the
Advances), the Agent shall not be required to exercise any discretion or
take
any action, but shall be required to act or to refrain from acting (and shall
be
fully protected in so acting or refraining from acting) upon the instructions
of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided,
however,
that the Agent
shall not be required to take any action that exposes the Agent to personal
liability or that is contrary to this Agreement or the other Loan Documents
applicable law. The Agent agrees to give to each Lender prompt notice of
each
notice given to it by each of the Borrowers pursuant to the terms of this
Agreement or the other Loan Documents.
SECTION
7.02 Agent’s
Reliance, Etc.
Neither
the Agent
nor any of its directors, officers, agents or employees shall be liable for
any
action taken or omitted to be taken by it or them under or in connection
with
this Agreement or any of the other Loan Documents, except for its or their
own
negligence or willful misconduct. Without limitation of the generality of
the
foregoing, the Agent: (i) may treat the Lender that made any Advance as the
holder of the Debt resulting therefrom until the Agent receives and accepts
an
Assignment and Acceptance entered into by such Lender, as assignor, and any
assignee thereof as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for any of the Loan Parties), independent
public accountants and other experts selected by it and shall not be liable
for
any action taken or omitted to be taken in good faith (without negligence
or
willful misconduct) by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection with
this
Agreement or any of the other Loan Documents; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of
the
terms, covenants or conditions of this Agreement or any of the other Loan
Documents on the part of any of the Loan Parties or to inspect the property
(including the books and records) of any of the Loan Parties; (v) shall not
be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness or sufficiency or value of this Agreement or
any of
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of
this Agreement or any of the other Loan Documents by acting in good faith
upon
any notice, consent, certificate or other instrument or writing (which may
be by
telecopier or telegram) believed by it to be genuine and signed or sent by
the
proper party or parties.
-
39 -
SECTION
7.03 Citibank
and
Affiliates.
With
respect to its
Commitment, the Advances made by it and any Note or Notes issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term
“Lender”
or
“Lenders”
shall,
unless
otherwise expressly indicated, include Citibank in its individual capacity.
Citibank and its Affiliates may accept deposits from, lend money to, act
as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any of the Borrowers, any
of
their Subsidiaries and any Person who may do business with or own securities
of
any of the Borrowers or their Subsidiaries, all as if Citibank were not the
Agent and without any duty to account therefor to the Lenders.
SECTION
7.04 Lender
Credit
Decision.
Each
Lender
acknowledges that it has, independently and without reliance upon the Agent
or
any other Lender and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
credit decisions in taking or not taking action under this
Agreement.
SECTION
7.05 Indemnification.
The
Lenders agree
to indemnify the Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Advances then owing
to each
of them (or if no Advances are at the time outstanding or if any Advances
are
then owing to Persons that are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or
arising
out of this Agreement or any of the other Loan Documents or any action taken
or
omitted by the Agent hereunder or thereunder (collectively, the “Indemnified
Costs”),
provided
that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent’s negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by
the
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrowers. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this
Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION
7.06 Successor
Agent.
The
Agent may
resign at any time by giving written notice thereof to the Lenders and each
of
the Borrowers and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent acceptable to the Initial
Borrower. If no successor Agent shall have been so appointed by the Required
Lenders and approved by the Initial Borrower, and shall have accepted such
appointment, within 30 days after the retiring Agent’s giving of notice of
resignation or the Required Lenders’ removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which
shall be a commercial bank organized under the laws of the United States
of
America or of any State thereof and having a combined capital and surplus
of at
least $500,000,000. Upon the acceptance of any appointment as Agent hereunder
by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of
the
retiring Agent, and the retiring Agent shall be discharged from its duties
and
obligations under this Agreement and the other Loan Documents. After any
retiring Agent’s resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement and the other Loan
Documents.
-
40 -
SECTION
7.07 Sub-Agent.
The
Sub-Agent has
been designated under this Agreement to carry out the duties of the Agent.
The
Sub-Agent shall be subject to each of the obligations in this Agreement to
be
performed by the Sub-Agent, and each of the Borrowers and the Lenders agrees
that the Sub-Agent shall be entitled to exercise each of the rights and shall
be
entitled to each of the benefits of the Agent under this Agreement as such
rights and benefits relate to the performance of its obligations
hereunder.
SECTION
7.08 Other
Agents.
Each
Lender hereby
acknowledges that no syndication agent and no documentation agent nor any
other
Lender designated as any “agent”
(other
than the
Agent and the Sub-Agent) on the signature pages or the cover hereof has any
liability hereunder other than in its capacity as a Lender.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01 Amendments,
Etc.
No
amendment or
waiver of any provision of this Agreement or any of the other Loan Documents,
nor consent to any departure by any Borrower therefrom, shall in any event
be
effective unless the same shall be in writing and signed by each of the
Borrowers and the Required Lenders, and then such waiver or consent shall
be
effective only in the specific instance and for the specific purpose for
which
given; provided,
however,
that no
amendment, waiver or consent shall, unless in writing and signed by all the
Borrowers and all of the Lenders (other than any Lender that is an Affiliate
of
any Borrower), do any of the following: (a) waive any of the conditions
specified in Section 3.01, (b) increase the Commitments of the Lenders
or postpone the Termination Date, (c) reduce the principal of, or interest
on, the Revolving Credit Advances or any fees or other amounts payable
hereunder, (d) postpone any scheduled date for any payment of principal of,
or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder pursuant to Section 2.04, 2.06 or 2.07, (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of
the Revolving Credit Advances, or the number of Lenders, that shall be required
for the Lenders or any of them to take any action hereunder, or (f) amend
this Section 8.01; and provided further
that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any other Loan Document.
SECTION
8.02 Notices,
Etc.
-
41 -
(a) All
notices and
other communications provided for hereunder shall be either (x) in writing
(including telecopier or telegraphic communication) and mailed, telecopied,
telegraphed or delivered, or (y) to the extent set forth in
Section 8.02(b) and in the proviso to this Section 8.02(a), by
electronic mail (in .PDF form) (“Email”),
confirmed
reasonably promptly thereafter in writing, if to the Initial Borrower, at
the
address of such Person at 0, xxx Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx, with
a copy
to Xxxxx X. Xxxxxxx, General Counsel-Western Europe, Procter & Xxxxxx, 00
Xxxxx xx Xxxxx Xxxxxxx, 0000 Xxxxx-Xxxxx 0, Xxxxxxxxxxx, Tel.: x00-00-000-0000,
Fax: x00-00-000-0000, email ;
if to any
Additional Borrower to such Person at the address specified therefor in the
applicable Borrower Accession Agreement; if to any Initial Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto;
if to
any other Lender, at its Domestic Lending Office specified in the Assignment
and
Acceptance pursuant to which it became a Lender, as the case may be; and
if to
the Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000; or,
as
to any Borrower or the Agent, at such other address as shall be designated
by
such party in a written notice to the other parties and, as to each other
party,
at such other address as shall be designated by such party in a written notice
to each of the Borrowers and the Agent; provided,
that Notices of
Revolving Credit Borrowing, Notices of Competitive Bid Borrowing and materials
delivered pursuant to Section 5.01(d)(i) and (d)(iii) shall be delivered to
the Agent as specified in Section 8.02(b) or as otherwise specified to the
Company by the Agent. All such notices and communications shall, when mailed,
telecopied or Emailed, be effective when deposited in the mails, telecopied
or
confirmed by Email, respectively, except that notices and communications
to the
Agent pursuant to Article II or III shall not be effective until received
by the Agent. Delivery by telecopier or facsimile of an executed counterpart
of
any amendment or waiver of any provision of this Agreement or any other Loan
Document or of any Exhibit hereto or thereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
(b) Notices
of
Revolving Credit Borrowing, Notices of Competitive Bid Borrowing and materials
required to be delivered pursuant to Section 5.01(d)(i) and (d)(iii) may be
delivered to the Agent in an electronic medium in a format acceptable to
the
Agent by Email at ,
or such other
email address as the Agent shall specify in writing to each of the Loan Parties.
Each of the Borrowers agrees that the Agent may make such materials, as well
as
any other written information, documents, instruments and other material
relating to each of the Borrowers, any of its Subsidiaries or any other
materials or matters relating to this Agreement, any of the other Loan Documents
or any of the transactions contemplated hereby or thereby (collectively,
the
“Communications”)
available to the
Lenders by posting such notices on Intralinks or a substantially similar
electronic system reasonably approved by the Company (the “Platform”).
Although the
primary web portal is secured with a dual firewall and a User ID/Password
Authorization System and the Platform is secured through a single user per
deal
authorization method whereby each user may access the Platform only on a
deal-by-deal basis, each of the Borrowers acknowledges that (i) the
distribution of material through an electronic medium is not necessarily
secure
and that there may be confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the Communications
or
the Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or
other
code defects, is made by the Agent or any of its Affiliates in connection
with
the Platform.
(c) Each
Lender agrees
that notice to it (as provided in the next sentence) (a “Notice”)
specifying that
any Communications have been posted to the Platform shall constitute effective
delivery of such information, documents or other materials to such Lender
for
purposes of this Agreement. Each Lender agrees (i) to notify the Agent in
writing of such Lender’s Email address to which a Notice may be sent by
electronic transmission (including by electronic communication) on or before
the
date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective Email address
for
such Lender) and (ii) that any Notice may be sent to such Email
address.
-
42 -
SECTION
8.03 No
Waiver;
Remedies.
No
failure on the
part of any Lender or the Agent to exercise, and no delay in exercising,
any
right hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any
other or further exercise thereof or the exercise of any other right. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
SECTION
8.04 Costs
and
Expenses.
(a) The
Initial
Borrower agrees to pay reasonably promptly following demand therefor all
reasonable out-of-pocket costs and expenses of the Agent in connection with
the
preparation, execution, delivery, administration, modification and amendment
of
this Agreement, the other Loan Documents and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement and the other Loan Documents. Each
of the
Borrowers further agrees to pay on demand all reasonable out-of-pocket costs
and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
against such Borrower (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the other Loan Documents and the other documents
to be delivered hereunder and thereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights against such Borrower under this
Section 8.04(a).
(b) Each
of the
Borrowers agrees to indemnify and hold harmless the Agent and each Lender
and
each of their Affiliates and their officers, directors, employees, agents
and
advisors (each, an “Indemnified
Party”;
and each of the
Agent and the Lenders, and their respective Affiliates officers, directors,
employees, agents and advisors being, in relation to each other, a “Related
Indemnified Party”)
from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each
case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding
or
preparation of a defense in connection therewith) the Advances, this Agreement
or any of the other Loan Documents, any of the transactions contemplated
herein
or therein or the actual or proposed use of the proceeds of the Advances;
provided,
however,
that no Borrower
shall have any obligation to indemnify an Indemnified Party pursuant to this
Section 8.04(b) with respect to any claim, damage, loss, liability or
expense (i) that resulted from negligence, willful misconduct, violation of
law or the breach of any Loan Document by such Indemnified Party or a Related
Indemnified Party, (ii) is attributable to Taxes or Other Taxes, which in
each case shall be governed solely by Section 2.14, (iii) that arises
out of a claim, litigation, arbitration or proceeding of one or more of the
Agent and/or any of the Lenders solely against the Agent and/or any of the
other
Lenders not attributable to the actions of such Borrower or any of its
Subsidiaries or Affiliates or (iv) that arises out of a claim, litigation,
arbitration or proceeding in which one or more of the Borrowers and/or their
Subsidiaries or Affiliates prevail. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the directors, shareholders or creditors of any
Borrower or an Indemnified Party or any other Person or any Indemnified Party
is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. Each of the Borrowers and each of the Indemnified
Parties hereby agrees not to assert any claim against each such other Person,
on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Advances, this Agreement
or
any of the other Loan Documents, any of the transactions contemplated herein
or
therein or the actual or proposed use of the proceeds of the Advances.
No
Indemnified Party shall settle or otherwise pay or agree to pay any claim,
damages, losses liabilities or expenses for which any Borrower is obligated
to
provide indemnification under this Section 8.04(b) without the prior
written consent of such Borrower.
-
43 -
(c) If
any payment of
principal of, or Conversion of, any Eurocurrency Rate Advance is made by
any
Borrower to or for the account of a Lender other than on the last day of
the
Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.08(d) or (e), 2.10 or 2.12, acceleration of the
maturity of the Advances pursuant to Section 6.02 or for any other reason,
or by an assignee to a Lender other than on the last day of the Interest
Period
for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 8.07 as a result of a demand by a Borrower
pursuant to Section 8.07(a), each of the Borrowers shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for
the
account of such Lender any amounts required to compensate such Lender for
any
additional losses, costs or expenses that it may reasonably incur as a result
of
such payment or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
to
fund or maintain such Advance.
(d) Without
prejudice
to the survival of any other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers contained in Sections 2.11,
2.14 and 8.04 shall survive the payment in full of principal, interest and
all
other amounts payable hereunder and under the other Loan Documents.
SECTION
8.05 Right
of
Set-off.
Upon
(i) the
occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by
Section 6.02 to authorize the Agent to declare the Advances due and payable
pursuant to the provisions of Section 6.02, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other indebtedness at any time owing by such Lender or such Affiliate to
or for
the credit or the account of any Borrower against any and all of the obligations
of any Borrower now or hereafter existing under this Agreement, whether or
not
such Lender shall have made any demand under this Agreement and although
such
obligations may be unmatured. Each Lender agrees promptly to notify each
of the
Borrowers after any such set-off and application, provided
that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section
are
in addition to other rights and remedies (including, without limitation,
other
rights of set-off) that such Lender and its Affiliates may have.
SECTION
8.06 Binding
Effect.
This
Agreement
shall become effective when it shall have been executed and delivered by
the
Initial Borrower and the Agent and when the Agent shall have been notified
by
each Initial Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrowers, the Agent
and
each Lender and their respective successors and assigns, except that (other
than
in accordance with Section 5.02(b) or Section 8.10) no Borrower shall
have the right to assign its rights hereunder or any interest herein without
the
prior written consent of the Lenders.
-
44 -
SECTION
8.07 Assignments
and
Participations.
(a) Without
the written
consent of the Initial Borrower (which consent may be withheld in its sole
and
absolute discretion) and, except in connection with an Affiliate of the Borrower
exercising its call rights under Section 2.18, of the Agent (which consent
shall
not be unreasonably withheld), no Lender may assign all or any portion of
its
rights and obligations under this Agreement to any Person, except to an
Affiliate of such Lender, as provided in Section 2.11, 2.14 or 2.18,
or as set forth in Section 8.07(g) or to another Lender that is an
Affiliate of such Lender. If any Lender (i) requests any payment to under
Section 2.11 or Section 2.14 or (ii) gives notice to any Borrower
pursuant to Section 2.12, then, so long as no Default or Event of Default
has occurred and is continuing at such time, any Borrower may demand upon
at
least three Business Days’ notice to such Lender and the Agent that such Lender,
and, upon such demand, such Lender shall, assign all of its rights and
obligations under this Agreement to any Person designated by such Borrower.
Each
assignment pursuant to the terms of this Section 8.07(a) (A) shall be
of a constant, and not a varying, percentage of all rights and obligations
under
this Agreement and shall be on a pro rata basis between the Facilities (and,
in
the case of an assignment demanded by a Borrower, shall be either an assignment
of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender
under
this Agreement), except that any such assignment of a Commitment by a Lender
to
another Lender that is an Affiliate of such Lender need not be accompanied
by an
assignment of the same percentage of any of the assigning Lender’s Advances and
any such assignment of one or more Advances by a Lender to another Lender
that
is an Affiliate of such Lender need not be accompanied by an assignment of
the
same percentage the assigning Lender’s Commitment or any of the assigning
Lenders other Advances, (B) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment
of all
of a Lender’s rights and obligations under this Agreement, shall in no event be
less than $10,000,000, and (C) shall be evidenced by evidenced by an
Assignment and Acceptance executed by each of the parties thereto and delivered
to the Agent, for its acceptance and recording in the Register. No Lender
shall
be obligated to make any such assignment as a result of a demand by a Borrower
pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrowers or one or more Lender
assignees therefrom in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together
with
accrued interest thereon to the date of payment of such principal amount
and all
other amounts payable to such Lender under this Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (1) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have
been
assigned to it pursuant to such Assignment and Acceptance, have the rights
and
obligations of a Lender hereunder and (2) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned
by
it pursuant to such Assignment and Acceptance, relinquish its rights and
be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By
executing and
delivering an Assignment and Acceptance, the Lender assignor thereunder and
the
assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than as provided in such Assignment and
Acceptance, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any of the
other
Loan Documents or the execution, legality, validity, enforceability, genuineness
or sufficiency or value of this Agreement or any of the other Loan Documents
or
any other instrument or document furnished pursuant hereto or thereto;
(ii) such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Borrower
or the
performance or observance by any Borrower of any of its obligations under
this
Agreement or any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignee confirms that it
has received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and
decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the Agent, such assigning Lender
or any other Lender and based on such documents and information as it shall
deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents
as
are delegated to the Agent by the terms hereof and thereof, together with
such
powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of
the
obligations that by the terms of this Agreement are required to be performed
by
it as a Lender.
-
45 -
(c) Upon
its receipt of
an Assignment and Acceptance executed by an assigning Lender and an assignee
in
accordance with Section 8.07(a), together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit
B
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to each of the Borrowers.
(d) The
Agent shall
maintain at its address referred to in Section 8.02 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register
for the
recordation of the names and addresses of the Lenders and Commitments of,
and
principal amount of the Advances under each Facility owing to, each Lender
from
time to time (the “Register”).
The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and each of the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded as a Lender in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by each of the Borrowers or any Lender at any reasonable time
and
from time to time upon reasonable prior notice.
(e) Each
Lender may
upon not less than five Business Days’ notice to the Initial Borrower sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments but only on a pro rata basis
between the Facilities, the Advances owing to it and any Note or Notes held
by
it); provided,
however,
that
(i) such Lender’s obligations under this Agreement (including, without
limitation, its Commitment to each of the Borrowers hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) each of the Borrowers, the Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement and (v) no participant under
any such participation shall have any right to approve any amendment or waiver
of any provision of this Agreement or any other Loan Document, or any consent
to
any departure by the Borrowers therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the
Advances or any fees or other amounts payable hereunder, in each case to
the
extent subject to such participation, or postpone any scheduled date for
any
payment of principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation. If any Lender sells a participation as described in this
Section 8.07(e), such Lender shall provide to the Agent on behalf of the
Borrowers, or maintain as agent of the Borrowers, the information described
in
Section 8.07(d) with respect to such participation and shall permit each of
the Borrowers to review such information (to the extent permitted under
applicable law) from time to time upon request. Neither the sale of any such
participation nor the holding of such a participation by any participant
shall
increase any obligation of any Borrower under Section 2.11 or Section
2.14.
-
46 -
(f) Any
Lender may, in
connection with any assignment or participation or proposed assignment or
proposed participation, disclose to the assignee or participant or proposed
assignee or participant any financial statements and related documents delivered
to the Agent in accordance with Section 4.01(e) or Section 5.01(d)(i);
provided
that, prior to any
such disclosure, the assignee or participant or proposed assignee or proposed
participant shall agree to preserve the confidentiality of any Confidential
Information received by it in accordance with the terms of
Section 8.08.
(g) Notwithstanding
any
other provision set forth in this Agreement, any Lender may at any time create
a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or
Notes
held by it) in favor of any Federal Reserve Bank in accordance with Regulation
A
of the Board of Governors of the Federal Reserve System.
SECTION
8.08 Confidentiality.
Neither
the Agent
nor any Lender shall disclose any Confidential Information to any other Person
without the consent of each of the Borrowers, other than (a) to the Agent’s
or such Lender’s Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by 8.07(f), to actual or prospective assignees
and
participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process and (c) as requested or
required by any state, federal or foreign authority or examiner regulating
banks
or banking; provided,
that, with
respect to clause (b) above, the Agent and each Lender agree to notify the
Initial Borrower promptly of any such request for the disclosure of Confidential
Information unless such notification is prohibited by applicable law, rule
or
regulation or by judicial process.
SECTION
8.09 Judgment
Currency.
(a) If
for the purposes
of obtaining judgment in any court it is necessary to convert a sum due
hereunder in Dollars or Euros into another currency, the parties hereto agree,
to the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures
the
Agent could purchase Dollars or Euros, as the case may be, with such other
currency at Citibank’s principal office in London at 11:00 A.M. (London
time) on the Business Day preceding that on which final judgment is
given.
(b) The
obligation of
each Borrower in respect of any sum due from it in any currency (the
“Primary
Currency”)
to any Lender or
the Agent hereunder shall, notwithstanding any judgment in any other currency,
be discharged only to the extent that on the Business Day following receipt
by
such Lender or the Agent (as the case may be), of any sum adjudged to be
so due
in such other currency, such Lender or the Agent (as the case may be) may
in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent
(as
the case may be) in the applicable Primary Currency, each Borrower agrees,
as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the amount
of
the applicable Primary Currency so purchased exceeds such sum due to any
Lender
or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to such Borrower
such
excess.
-
47 -
SECTION
8.10 Additional
Borrowers; Assumption of Advances.
(a) The
Initial
Borrower may request that any of the Related Parties become party to this
Agreement as an additional borrower (an “Additional
Borrower”),
and
additionally such Related Party or a Borrower may elect that all or any portion
of the Advances and other obligations of any Borrower under this Agreement
and
the other Loan Documents shall be assumed by any other Borrower, in either
case,
by delivering to the Agent each of the following:
(i) a
Borrower
Accession Agreement, duly executed by the Initial Borrower and such Related
Party, together with a certificate of an authorized representative of the
Additional Borrower certifying the names and true signatures of the other
authorized representatives of the Additional Borrower authorized to sign
the
Borrower Accession Agreement and the other documents to be delivered
hereunder;
(ii) an
opinion of
counsel addressing the matters covered by opinion paragraphs 1, 2, 3, and
4 of
Exhibit
C-1,
opinion paragraph
1 of Exhibit
C-2,
and opinion
paragraphs 1 and 2 of Exhibit
C-3
in
Section 3.01(d)(iv) (with such exceptions, assumptions and qualifications
as are customary or appropriate in light of the circumstances under which
such
opinion is given).
(b) A
Related Party in
respect of which the Initial Borrower has delivered a Borrower Accession
Agreement to the Agent shall become an Additional Borrower and, as such,
shall
have all of the rights and obligations of a Borrower hereunder with respect
to
the Commitments specified to be made available to such Additional Borrower,
which shall be in a minimum amount of $500,000,000; provided,
that no Default
or Event of Default shall have occurred and be continuing or would result
from
such joinder or assumption, as applicable. Upon any assumption of all of
the
Advances and other obligations of any Borrower, then, so long no Notice of
Revolving Credit Borrowing or Notice of Competitive Bid Borrowing in respect
of
such Borrower is outstanding at such time, such Borrower shall no longer
be a
party to this Agreement.
SECTION
8.11 Governing
Law.
This
Agreement
shall be governed by, and construed in accordance with, the laws of the State
of
New York.
SECTION
8.12 Jurisdiction.
(a) Each
of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and
any
appellate court from any thereof, in any action or proceeding arising out
of or
relating to this Agreement or any other Loan Document, or for recognition
or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action
or
proceeding may be heard and determined in any such New York State court or,
to
the extent permitted by law, in such federal court. Each Borrower agrees
that
service of process in any such action or proceeding brought in any such New
York
State court or in such federal court may be made upon CT Corporation System
and
its offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Process
Agent”),
and hereby
further agrees that any failure of the Process Agent to give any notice of
any
such service to any Borrower shall not impair or affect the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Each of the parties hereto agrees that a final judgment in any such action
or
proceeding shall be conclusive and may be enforced in other jurisdictions
by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring
any
action or proceeding relating to this Agreement or any other Loan Document
in
the courts of any jurisdiction.
-
48 -
(b) Each
of the parties
hereto irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter
have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any New York State
or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the
maintenance of such action or proceeding in any such court.
SECTION
8.13 Execution
in
Counterparts.
This
Agreement may
be executed in any number of counterparts and by different parties hereto
in
separate counterparts, each of which when so executed shall be deemed to
be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION
8.14 Waiver
of Jury
Trial.
Each
of the
Borrowers, the Agent and the Lenders hereby irrevocably waives all right
to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement
or any
of the other Loan Documents or the actions of the Agent or any Lender in
the
negotiation, administration, performance or enforcement thereof.
SECTION
8.15 Patriot
Act.
Each
Lender hereby
notifies each of the Borrowers that, pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law on October 26,
2001))
(the “Act”),
it is required
to obtain, verify and record information that identifies each Loan Party,
which
information includes the name and address of each Loan Party and other
information that will allow such Lender to identify such Loan Party in
accordance with the Act.
-
49 -
IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective
officers or representatives thereunto duly authorized, as of the date first
above written.
PROCTER
&
XXXXXX INTERNATIONAL
S.A.R.L.,
as the Initial
Borrower
By:
___________________________________
Title:
__________________________________
PROCTER
&
XXXXXX HOLDING (HK)
LIMITED,
as a
Borrower
By:
___________________________________
Title:
__________________________________
PROCTER
&
XXXXXX INTERNATIONAL
OPERATION
S.A.,
as a Borrower
By:
___________________________________
Title:
__________________________________
CITIBANK,
N.A.,
as
Agent
By:
___________________________________
Title:
__________________________________
SCHEDULE
I
CREDIT
AGREEMENT
APPLICABLE
LENDING
OFFICES
|
Name
of
Lender
|
Domestic
Lending Office
|
Eurocurrency
Lending Office
|
|
ABN
AMRO Bank
N.V.
|
000
Xxxx
Xxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX
00000
Attn:
Loan
Administration
T:
000
000-0000
F:
312
992-5157
|
000
Xxxx
Xxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
XX
00000
Attn:
Loan
Administration
T:
000
000-0000
F:
000
000-0000
|
|
Citibank,
N.A.
|
Xxx
Xxxxx
Xxx
Xxx
Xxxxxx,
XX 00000
Attn:
T:
000
000-0000
F:
000
000-0000
|
Xxx
Xxxxx
Xxx
Xxx
Xxxxxx,
XX 00000
Attn:
T:
000
000-0000
F:
000
000-0000
|
|
Deutsche
Bank
AG New York Branch
|
00
Xxxxxx
Xxxxxx
Xxxxxx
Xxxx,
XX 00000
Attn:
Xxx
Xxxxxx
T:
000
000-0000
F:
201
593-2313
|
00
Xxxxxx
Xxxxxx
Xxxxxx
Xxxx,
XX 00000
Attn:
Xxx
Xxxxxx
T:
000
000-0000
F:
000
000-0000
|
|
HSBC
Bank
USA, National Association
|
Xxx
XXXX
Xxxxxx
00xx
Xxxxx
Xxxxxxx,
XX
00000
Attn:
Xxxxx
Xxxxx
T:
000
000-0000
F:
716
841--5683
|
Xxx
XXXX
Xxxxxx
00xx
Xxxxx
Xxxxxxx,
XX
00000
Attn:
Xxxxx
Xxxxx
T:
000
000-0000
F:
716
841--5683
|
|
The
Hong Kong
Shanghai Banking Corporation Limited
|
Xxxxx
0
XXXX
Xxxx
Xxxxxxxx
0
Xxxxx’s
Road Central
Hong
Kong
Attn:
Xxxx
Xxxx
T:
852 2822
2503
F:
852 2866
4249
|
Xxxxx
0
XXXX
Xxxx
Xxxxxxxx
0
Xxxxx’s
Road Central
Hong
Kong
Attn:
Xxxx
Xxxx
T:
852 2822
2503
F:
852 2866
4249
|
|
JPMorgan
Chase Bank, N.A.
|
0000
Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX
00000
Attn:
Xxxxxx
Xxxxxx
T:
000
000-0000
F:
713
750-2782
|
0000
Xxxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX
00000
Attn:
Xxxxxx
Xxxxxx
T:
000
000-0000
F:
000
000-0000
|
|
Xxxxxxx
Xxxxx
Capital Corp.
|
0
Xxxxx
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxx
Buttenmuller
T:
000
000-0000
F:
000
000-0000
|
0
Xxxxx
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxx
Buttenmuller
T:
000
000-0000
F:
000
000-0000
|
|
Xxxxxx
Xxxxxxx Bank
|
0000
Xxxx
Xxxx Xxxx.
Xxxxx
000X
Xxxx
Xxxxxx
Xxxx, XX 00000
Attn:
Xxxxx
Xxxxxxx
T:
000
000-0000
F:
718
754-7249
|
0000
Xxxx
Xxxx Xxxx.
Xxxxx
000X
Xxxx
Xxxxxx
Xxxx, XX 00000
Attn:
Xxxxx
Xxxxxxx
T:
000
000-0000
F:
000
000-0000
|
|
Xxxxxx
Xxxxxxx Senior Funding, Inc.
|
0000
Xxxxxxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxx
Xxxxxxx
T:
000
000-0000
F:
718
754-7249
|
0000
Xxxxxxxx
Xxx
Xxxx, XX
00000
Attn:
Xxxxx
Xxxxxxx
T:
000
000-0000
F:
000
000-0000
|
|
Xxxxxxx
Sachs
Credit Partners L.P.
|
00
Xxxxx
Xxxxxx
Xxx
Xxxx, XX
00000
|
c/o
Goldman
Xxxxx International
Petershill
0
Xxxxxx
Xxxx
Xxxxxx
XX0X
0XX
Xxxxxxx
|
SCHEDULE
II
CREDIT
AGREEMENT
COMMITMENTS
|
Name
of
Lender
|
Tranche
A
Commitment
|
Tranche
B
Commitment
|
|
Citibank,
N.A.
|
$3,500,000,000
|
$500,000,000
|
|
ABN
AMRO Bank
N.V.
|
$2,625,000,000
|
$375,000,000
|
|
Deutsche
Bank
AG New York Branch
|
$2,625,000,000
|
$375,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
$2,625,000,000
|
$375,000,000
|
|
Xxxxxxx
Xxxxx
Capital Corp.
|
$2,625,000,000
|
$375,000,000
|
|
Xxxxxxx
Sachs
Credit Partners L.P.
|
$1,750,000,000
|
$250,000,000
|
|
The
Hong Kong
Shanghai Banking Corporation Limited
|
$1,750,000,000
|
$250,000,000
|
|
HSBC
Bank
USA, National Association
|
$875,000,000
|
$125,000,000
|
|
Xxxxxx
Xxxxxxx Senior Funding, Inc.
|
$1,312,500,000
|
$187,500,000
|
|
Xxxxxx
Xxxxxxx Senior Funding (Capital)
|
$1,050,000,000
|
$150,000,000
|
|
Xxxxxx
Xxxxxxx Bank
|
$262,500,000
|
$37,500,000
|
