EXHIBIT 10.1
EXECUTION COPY
U.S. $2,450,000,000
364-DAY CREDIT AGREEMENT
Dated as of May 28, 2004
Among
THE LUBRIZOL CORPORATION
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
KEY BANK NATIONAL ASSOCIATION
and
ABN AMRO BANK N.V.
as Syndication Agents
WACHOVIA CAPITAL INVESTMENTS, INC.
as Documentation Agent
and
CITICORP NORTH AMERICA, INC.
as Agent
CITIGROUP GLOBAL MARKETS INC.
as Lead Arranger and Book Manager
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 11
SECTION 1.03. Accounting Terms 11
ARTICLE II
SECTION 2.01. The Advances 11
SECTION 2.02. Making the Advances 12
SECTION 2.03. Fees 12
SECTION 2.04. Termination or Reduction of the Commitments 13
SECTION 2.05. Repayment of Advances 13
SECTION 2.06. Interest on Advances 13
SECTION 2.07. Interest Rate Determination 14
SECTION 2.08. Optional Conversion of Advances 14
SECTION 2.09. Prepayments of Advances 15
SECTION 2.10. Increased Costs 15
SECTION 2.11. Illegality 16
SECTION 2.12. Payments and Computations 16
SECTION 2.13. Taxes 17
SECTION 2.14. Sharing of Payments, Etc. 18
SECTION 2.15. Evidence of Debt 18
SECTION 2.16. Use of Proceeds 19
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 19
SECTION 3.02. Conditions Precedent to the Initial Borrowing of Each Designated Subsidiary 21
SECTION 3.03. Conditions Precedent to Each Borrowing. 21
SECTION 3.04. Determinations Under Section 3.01 22
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 22
ARTICLE V
SECTION 5.01. Affirmative Covenants 24
SECTION 5.02. Negative Covenants 25
SECTION 5.03. Financial Covenants 30
ARTICLE VI
SECTION 6.01. Events of Default 30
ARTICLE VII
SECTION 7.01. Guaranty 32
SECTION 7.02. Guaranty Absolute 32
SECTION 7.03. Waivers and Acknowledgments 33
SECTION 7.04. Subrogation 33
SECTION 7.05. Subordination 34
SECTION 7.06. Continuing Guaranty; Assignments 34
ARTICLE VIII
SECTION 8.01. Authorization and Action 35
SECTION 8.02. Agent's Reliance, Etc. 35
SECTION 8.03. Citicorp and Affiliates 35
SECTION 8.04. Lender Credit Decision 35
SECTION 8.05. Indemnification 36
SECTION 8.06. Successor Agent 36
SECTION 8.07. Sub-Agent 36
ii
SECTION 8.08. Other Agents. 36
ARTICLE IX
SECTION 9.01. Amendments, Etc. 36
SECTION 9.02. Notices, Etc. 37
SECTION 9.03. No Waiver; Remedies 38
SECTION 9.04. Costs and Expenses 38
SECTION 9.05. Right of Set-off 39
SECTION 9.06. Binding Effect 39
SECTION 9.07. Assignments and Participations 39
SECTION 9.08. Confidentiality 41
SECTION 9.09. Governing Law 42
SECTION 9.10. Execution in Counterparts 42
SECTION 9.11. Jurisdiction, Etc. 42
SECTION 9.12. Designated Subsidiaries 42
SECTION 9.13. Waiver of Jury Trial 2
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Schedule 5.02(c) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Company
Exhibit E - Form of Designation Letter
iv
364-DAY CREDIT AGREEMENT
Dated as of May 28, 2004
THE LUBRIZOL CORPORATION, an Ohio corporation (the "Company"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC., as sole
lead arranger, and CITICORP NORTH AMERICA, INC. ("Citicorp"), as administrative
agent (the "Agent") for the Lenders, agree as follows:
PRELIMINARY STATEMENTS:
1. Pursuant to the Agreement and Plan of Merger dated April 15, 2004
(as amended, the "Merger Agreement") the Company has agreed to acquire Noveon
International Inc. (the "Target") by the consummation of a merger of Lubrizol
Acquisition Corporation, a Delaware corporation and direct or indirect
subsidiary of the Company, with the Target, pursuant to which the Target will
become a wholly-owned Subsidiary of the Company (the "Acquisition").
2. The Company has requested that, concurrently with the consummation
of the Acquisition, the Lenders lend to the Company up to $2,450,000,000 to pay
the cash consideration required to consummate the Acquisition, pay transaction
fees and expenses, refinance certain existing Debt (as hereinafter defined) of
the Company and the Target and that, from time to time, the Lenders lend to the
Borrowers to provide working capital for the Company and its Subsidiaries. The
Lenders have indicated their willingness to agree to lend such amounts on the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby 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):
"Acquisition" has the meaning specified in the Preliminary
Statements.
"Advance" means an advance by a Lender to any Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Account No. 00000000, Attention: Bank Loan Syndications.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined and calculated by reference to the Public Debt Rating in effect
on such date as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurodollar Rate Advances
------------------ --------------------- ------------------------
Level 1
A- or A3 or above 0.000% 0.400%
Xxxxx 0
BBB+ or Baa1 0.000% 0.500%
Level 3
BBB or Baa2 0.000% 0.850%
Xxxxx 0
XXX- xxx Xxx0 0.000% 0.925%
Xxxxx 0
XXX- xx Xxx0 0.000% 1.050%
Xxxxx 0
BB+ or Ba1 0.200% 1.200%
Level 7
BB or Ba2 0.600% 1.600%
Xxxxx 0
XX- xx Xx0 1.250% 2.250%
Xxxxx 0
Xxxxx xxxx Xxxxx 0 2.000% 3.000%
"Applicable Percentage" means, as of any date, a percentage per
annum determined and calculated by reference to the Public Debt Rating in
effect on such date as set forth below:
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
------------------ ----------
Level 1
A- or A3 or above 0.100%
Xxxxx 0
BBB+ or Baa1 0.125%
Xxxxx 0
BBB or Baa2 0.150%
Xxxxx 0
XXX- xxx Xxx0 0.000%
Xxxxx 0
XXX- or Baa3 0.200%
Xxxxx 0
BB+ or Ba1 0.300%
Xxxxx 0
XX xx Xx0 0.000%
Xxxxx 0
XX- or Ba3 0.500%
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.500%
2
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of
1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank in the sound
exercise of its commercially reasonable determination, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the
United States; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowers" means, collectively, the Company and each
Designated Subsidiary that shall become a Borrower hereunder
pursuant to Section 9.12.
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"Borrowing Minimum" means $10,000,000.
"Borrowing Multiple" means $1,000,000.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Citibank" means Citibank, N.A.
3
"Closing Date" means the date of this Agreement.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof or (b) 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 9.07(d).
"Confidential Information" means information that the Company
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is
generally available to the public or that is available to the Agent
or such Lender on a non-confidential basis from a source other than
the Company that is, to the knowledge of the Agent or such Lender,
not acting in breach of any confidentiality agreement.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated EBITDA" means, for any period, (a) Consolidated
net income, plus (b) to the extent deducted in determining such
Consolidated net income, the sum of, on a Consolidated basis and
without duplication: (i) interest expense, (ii) income tax expense,
(iii) depreciation expense, (iv) amortization expense, (v) depletion
expense, (vi) extraordinary, unusual or non-recurring non-cash
losses, including goodwill expense and non-cash losses from the
sale, exchange, transfer or other disposition of property of the
Company or its Subsidiaries and the related tax effects in
accordance with GAAP, (vii) extraordinary, unusual or non-recurring
cash losses, expenses or charges incurred or paid in calendar years
2003 or 2004, and all fees and expenses incurred in connection with
any acquisition consummated in calendar years 2003 or 2004
(including the acquisition of Noveon International Inc. ), minus (c)
to the extent included in determining such Consolidated net income,
the sum of, on a Consolidated basis and without duplication: (i) the
income of any Person (other than a wholly-owned Subsidiary of the
Company) in which any Person other than the Company or any of its
Subsidiaries has a joint interest or a partnership interest or other
ownership interest, except to the extent of the amount of dividends
or other distributions actually paid to the Company or any of its
Subsidiaries by such Person during such period, (ii) gains from the
sale, exchange, transfer or other disposition of property or assets
of the Company and its Subsidiaries (other than inventory sold in
the ordinary course of business), and related tax effects in
accordance with GAAP, (iii) any other extraordinary, unusual or
non-recurring gains or other income not from the continuing
operations of the Company and its Subsidiaries, and related tax
effects in accordance with GAAP and (iv) the income of any
Subsidiary of the Company to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of
that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Subsidiary. For the purpose of calculating Consolidated EBITDA for
any period, if during such period the Company or any Subsidiary
shall have made an acquisition of any Person, Consolidated EBITDA
for such period shall be calculated after giving pro forma effect
thereto as if such acquisition occurred on the first day of such
period.
"Consolidated Tangible Net Worth" means, as at any date, the
amount by which the sum of (a) the par value (or value stated on the
books of the Company) of the capital stock of all classes of the
Company, and (b) the amount of the Consolidated surplus, capital or
earned, but excluding accumulated foreign exchange translation
adjustments, of the Company and its Subsidiaries, exceeds the sum of
(i) the amount of any write-up in the book value of any assets
resulting from the revaluation thereof or any write-up in excess of
the cost of assets acquired, and (ii) the aggregate of all amounts
appearing on the asset side of the balance sheet for goodwill,
patents, patent rights, trademarks, trade names, copyrights,
franchises, treasury stock, organizational expenses, and other
similar items, if any, of the Company and its Subsidiaries, all
determined in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
4
"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 not overdue by more than 120
days incurred in the ordinary course of such Person's business;
provided that trade payables which are overdue by more than 120 days
shall not be included so long as payment of such is being contested
in good faith and by proper proceedings), (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 obligations, contingent or otherwise, of
such Person in respect of acceptances, letters of credit or similar
extensions of credit, (g) all Invested Amounts, (h) all Debt of
others referred to in clauses (a) through (g) above or clause (i)
below and other payment obligations guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person ("Guaranteed Debt") through an
agreement (1) to pay or purchase such Guaranteed Debt or to advance
or supply funds for the payment or purchase of such Guaranteed Debt,
(2) 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 Guaranteed Debt or to assure the
holder of such Guaranteed Debt against loss, (3) 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 (4) 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 Lien 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; provided, that Debt shall not include transactions in the
ordinary course of business by the Company or its directly or
indirectly held Subsidiaries with customers and vendors in the form
of (x) commitments to lend or loans to customers that are repayable
either over an agreed period of time or at the time of purchases by
the customers of products of the Company or its Subsidiaries and (y)
advances made to vendors that are treated either repayable over a
period of time or as advance payments for products to be purchased
by the Company or its Subsidiaries from the vendor.
"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.
"Designated Subsidiary" means any Subsidiary organized within
the United States, directly or indirectly wholly-owned by the
Company and designated after the date of this Agreement for
borrowing privileges hereunder pursuant to Section 9.12.
"Designation Letter" means a letter entered into by a
Designated Subsidiary, the Company and the Agent, in substantially
the form of Exhibit E hereto, pursuant to which such Designated
Subsidiary shall become a Borrower hereunder in accordance with
Section 9.12.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify
to the Borrowers and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person (unless such Person is taking
delivery of an assignment in connection with physical settlement of
a credit derivative transaction) approved by the Agent and, unless
an Event of Default has occurred and is
5
continuing at the time any assignment is effected in accordance with
Section 9.07, the Company, such approval not to be unreasonably
withheld or delayed; provided, however, that neither the Company nor
an Affiliate of the Company shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental
or regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages, and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Company's controlled group, or under
common control with the Company, within the meaning of Section 414
of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of
a Plan, and an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c)
the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (d) the cessation of operations at
a facility of the Company or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Company or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption
of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a
Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment
and Acceptance pursuant to which it became a Lender (or, if no such
office is specified, its Domestic
6
Lending Office), or such other office of such Lender as such Lender
may from time to time specify to the Borrowers and the Agent.
"Eurodollar Rate" means for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Telerate Markets Page
3750 (or any successor page) as the London interbank offered rate
for deposits in U.S. dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in
U.S. dollars 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) two Business Days
before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period. If the Telerate Markets Page
3750 (or any successor page), is unavailable, the Eurodollar Rate
for any Interest Period for each Eurodollar 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 two Business Days before the first day of
such Interest Period, subject, however, to the provisions of Section
2.07.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same
Borrowing means the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"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.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Guaranty" means the guaranty of the Company set forth in
Article VII.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon
gas and
7
(b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant, under any Environmental Law.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion
of any Base Rate Advance into such Eurodollar Rate Advance and
ending on the last day of the period selected by the applicable
Borrower pursuant to the provisions below and, thereafter, with
respect to Eurodollar Rate Advances, each subsequent period
commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, and subject
to clause (c) of this definition, one week or nine months, as such
Borrower may, upon notice received by the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) such Borrower may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) in the case of any such Borrowing, such Borrower
shall not be entitled to select an Interest Period having a
duration of one week or nine months unless, by 2:00 P.M. (New
York City time) on the third Business Day prior to the first
day of such Interest Period, each Lender notifies the Agent
that such Lender will be providing funding for such Borrowing
with such Interest Period (the failure of any Lender to so
respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such
Borrowing shall be one, two, three or six months, as specified
by the Borrower requesting such Borrowing in the applicable
Notice of Borrowing as the desired alternative to an Interest
Period of one week or nine months;
(d) 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
(e) 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.
"Invested Amounts" means the amounts invested by investors
that are not Affiliates of the Company in connection with a
receivables securitization program and paid to the Company or any of
its Subsidiaries, as reduced by the aggregate amounts received by
such investors from the payment of receivables and applied to reduce
such invested amounts.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities or all or
substantially all of the assets of such Person, any capital
contribution to such Person or any other
8
investment in such Person, including, without limitation, any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clauses (g) and (h) of the definition of "Debt" in
respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 9.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, including, without limitation, the lien or
retained security title of a conditional vendor and any security
interest or mortgage granted in real property.
"Marketable Securities" means any of the following, to the
extent owned by the Company or any of its Subsidiaries free and
clear of all Liens and having a maturity of not greater than 360
days from the date of acquisition thereof: (a) readily marketable
direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of the
United States, (b) insured certificates of deposit of or time
deposits with any commercial bank that is a Lender or a member of
the Federal Reserve System, issues (or the parent of which issues)
commercial paper rated as described in clause (c), is organized
under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1 billion, (c) commercial
paper in an aggregate amount of no more than $10,000,000 per issuer
outstanding at any time, issued by any corporation organized under
the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the
then equivalent grade) by S&P, (d) fully collateralized repurchase
agreements having a term of not more than 30 days and covering
securities described in subsection (a) above entered into with any
Lender or bank meeting the qualifications specified in (b) above or
(e) investments in money market funds substantially all of the
assets of which are comprised of securities described in subsection
(a) through (d) above.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as a whole
(including the Target and its Subsidiaries after giving effect to
the Acquisition).
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise) or operations
of the Company and its Subsidiaries taken as a whole (including the
Target and its Subsidiaries after giving effect to the Acquisition),
(b) the rights and remedies of the Agent or any Lender under this
Agreement or any Note or (c) the ability of any Borrower to perform
its obligations under this Agreement or any Note.
"Merger Agreement" has the meaning specified in the
Preliminary Statements.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued
an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and at least one
Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the incurrence or
issuance of any Debt or the sale or issuance of any equity interests
(including, without limitation, any capital contribution) by any
Person, the aggregate amount of cash received from
9
time to time (whether as initial consideration or through payment or
disposition of deferred consideration) by or on behalf of such
Person in connection with such transaction after deducting therefrom
only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal and accounting
fees, filing fees, finder's fees and other similar fees and
commissions and (b) the amount of taxes payable in connection with
or as a result of such transaction and (c) the amount of any Debt
secured by a Lien on such asset that, by the terms of the agreement
or instrument governing such Debt, is required to be repaid upon
such disposition, in each case to the extent, but only to the
extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of
such Person and are properly attributable to such transaction or to
the asset that is the subject thereof.
"Note" means a promissory note of a Borrower payable to any
Lender, delivered pursuant to a request made under Section 2.15 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the
Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company
or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Company or, if either of S&P or Moody's
has issued more than one such rating, the lowest such rating issued
by such rating agency. For purposes of the foregoing, (a) if only
one of S&P and Moody's shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage shall be
determined by reference to the available rating; (b) if neither S&P
nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage will be set in
accordance with Level 9 under the definition of "Applicable Margin"'
or "Applicable Percentage", as the case may be; (c) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; (d) if S&P or
Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be; and (e) if the ratings
established by S&P and Moody's shall fall within different levels
above Level 4 or within different levels below Xxxxx 0, the
Applicable Margin and the Applicable Percentage shall be based upon
the higher rating, unless the lower of such ratings is more than one
level below the higher of such ratings, in which case the Applicable
Margin and the Applicable Percentage shall be based upon the level
that is one level above the lower of such ratings.
"Reduction Amount" has the meaning specified in Section
2.09(b).
"Reference Banks" means Citibank and KeyBank.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least 66
2/3% of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least 66 2/3% of the Commitments.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
10
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Company or any ERISA Affiliate and no Person other
than the Company and the ERISA Affiliates or (b) was so maintained
and in respect of which the Company or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subordinated Obligations" has the meaning specified in
Section 7.05.
"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.
"Target" has the meaning specified in the Preliminary
Statements.
"Termination Date" means the earlier of (a) May 27, 2005 and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.04 or 6.01.
"Type" refers to the distinction between Base Rate Advances
and Eurodollar Rate Advances.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions)
of such Person, even if the right so to vote has been suspended by
the happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with generally accepted accounting principles in
the United States, as in effect from time to time ("GAAP"); provided that,
if the Company notifies the Agent that the Company requests an amendment
to any provision hereof as a result of a change in GAAP or in the
application thereof on the operation of such provision (or if the Agent
notifies the Company that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP in
effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the
Borrowers from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to
exceed at any time outstanding such Lender's Commitment. Each Borrowing
shall be in an amount not less than the Borrowing Minimum or a Borrowing
Multiple in excess thereof and shall consist of Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the
11
Borrowers may borrow under this Section 2.01, prepay pursuant to Section
2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than (x) 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing consisting of Eurodollar Rate Advances or (y)
11:00 A.M. (New York City time) on the date of the proposed Borrowing in
the case of a Borrowing consisting of Base Rate Advances, by the
applicable Borrower to the Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar
Rate Advances, initial Interest Period for each such Advance. Each Lender
shall, before 1:00 P.M. (New York City time) on the date of such
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 Borrowing. After the Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Section
3.03, the Agent shall make such funds available to the Borrower that
requested such Advance by depositing such funds to such account as such
Borrower shall specify.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowers may not select Eurodollar Rate Advances
for any Borrowing if the aggregate amount of such Borrowing is less than
the Borrowing Minimum or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.07
or 2.11 and (ii) the Eurodollar Rate Advances may not be outstanding as
part of more than fifteen separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower giving such Notice. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower giving such Notice 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 Borrowing for such Borrowing the applicable conditions set forth
in Section 3.03, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Advance to be made by such
Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender, contrary to
its Commitment, will not make available to the Agent such Lender's ratable
portion of such Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the applicable Borrower
on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay without duplication to
the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Agent, at (i)
in the case of such Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of
any Borrowing. Nothing herein shall be deemed to prejudice any rights
which any Borrower may have against a Lender as a result of any default by
a Lender hereunder.
SECTION 2.03. Fees. (a) Facility Fee. The Borrowers agree to
pay to the Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the Effective Date in
the case of each Initial Lender and from the effective date specified in
the 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
12
the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing June 30, 2004, and on the Termination Date.
(b) Participation Fees. The Borrowers agree to pay to the
Agent for the account of each Lender a participation fee (i) on the date
that is 180 days after the Closing Date, equal to 0.15% of each Lender's
Commitment on such date and (ii) on the date that is 270 days after the
Closing Date, equal to 0.15% of each Lender's Commitment on such date.
(c) Agent's Fees. The Company shall pay to the Agent for its
own account the fees set forth in the fee letter between the Company and
the Agent or as may from time to time be otherwise agreed in writing
between the Company and the Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Company shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) Mandatory. The Commitments shall be automatically and
permanently reduced, on a pro rata basis, on each date on which prepayment
of Advances is required to be made pursuant to Section 2.09(b) in an
amount equal to the applicable Reduction Amount, provided that
notwithstanding the foregoing and Section 2.09(b), in no event shall the
Commitments be reduced, pursuant to this Section 2.04(b), to less than
$350,000,000.
SECTION 2.05. Repayment of Advances. The Borrowers shall repay
to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then outstanding.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest.
The Borrowers shall pay interest on the unpaid principal amount of each
Advance owing to each Lender from the date of such 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 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, payable in arrears
quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from
the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default that has not been waived, the Agent
may, and upon the request of the Required Lenders shall, require the
Borrowers to pay interest ("Default Interest") on (i) the unpaid principal
amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii)
to the fullest extent permitted by law, the amount of any interest, fee or
other amount payable hereunder that is not paid when due, from the date
such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and on demand, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on Base Rate Advances pursuant to clause (a)(i)
above; provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Agent.
13
SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine
such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the
Borrowers and the Lenders of the applicable interest rate determined by
the Agent for purposes of Section 2.06(a)(i) or (ii), and the rate, if
any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders, as determined in the exercise of each such Lender's
commercially reasonable discretion, of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period, the
Agent shall forthwith so notify the Borrowers and the Lenders, whereupon
(A) the Borrowers will, on the last day of the then existing Interest
Period therefor, either (x) prepay such Advances or (y) Convert such
Advances into Base Rate Advances and (B) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify 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 Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section
1.01, the Agent will forthwith so notify such Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than the Borrowing
Minimum, such Advances shall automatically Convert into Base Rate
Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default that has not been waived, (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, be Converted into Base Rate Advances and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrowers and the
Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such
Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if
such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall
be suspended until the Agent shall notify the Borrowers and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.08. Optional Conversion of Advances. Any Borrower
may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert any or all Advances of one Type comprising the same
Borrowing made to it into Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any Advances
shall result in more separate Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such
14
Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower giving such notice.
SECTION 2.09. Prepayments of Advances. (a) Optional. Any
Borrower may, upon notice at least two Business Days prior to the date of
such prepayment, in the case of Eurodollar Rate Advances, and not later
than 11:00 A.M. (New York City time) on the date of such prepayment, in
the case of Base Rate Advances, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given,
such Borrower shall prepay the outstanding principal amount of the
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 (x) each partial
prepayment shall be in an aggregate principal amount not less than the
Borrowing Minimum or a Borrowing Multiple in excess thereof and (y) in the
event of any such prepayment of a Eurodollar Rate Advance, the applicable
Borrower shall be obligated to reimburse the Lenders in respect thereof
pursuant to Section 9.04(c).
(b) Mandatory. (i) The Borrowers shall, on the first
Business Day after the date of receipt of the Net Cash Proceeds in excess
of $10,000,000 in the aggregate by the Company or any of its Subsidiaries
from (A) the sale, lease, transfer or other disposition of any assets of
the Company or any of its Subsidiaries (other than any sale, lease,
transfer or other disposition of assets pursuant to clause (i), (ii),
(iii) or (iv) of Section 5.02(d)), (B) the incurrence or issuance by the
Company or any of its Subsidiaries of any Debt (other than Debt incurred
or issued pursuant to clause (i), (ii), (iii), (iv) or (vii) of Section
5.02(c)) and (C) the sale or issuance by the Company or any of its
Subsidiaries of any equity interests (including, without limitation,
receipt of any capital contribution), prepay an aggregate principal amount
of the Advances comprising part of the same Borrowings in an amount equal
to the amount of such Net Cash Proceeds. Each such prepayment shall be
applied ratably to the Advances comprising a Borrowing. The amount
remaining (if any) after the prepayment in full of the Advances then
outstanding (the sum of such prepayment amounts and remaining amount being
referred to herein as the "Reduction Amount") may be retained by the
Borrowers and the Commitments shall be permanently reduced as set forth in
Section 2.04(b).
(ii) Each prepayment made pursuant to this Section 2.09(b)
shall be made together with any interest accrued to the date of such
prepayment on the principal amounts prepaid and, in the case of any
prepayment of a Eurodollar Rate Advance on a date other than the last day
of an Interest Period or at its maturity, any additional amounts which the
Borrowers shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 9.04(c). The Agent shall give prompt notice of
any prepayment required under this Section 2.09(b) to the Borrowers and
the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority including, without
limitation, any agency of the European Union or similar monetary or
multinational authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from (i)
Taxes or Other Taxes (as to which Section 2.13 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrowers shall
from time to time, without premium or penalty, upon 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; provided however, that at such time such
Lender shall be generally assessing such amounts on a non-discriminatory
basis against borrowers under agreements having provisions similar to this
Section. A certificate as to the amount of such increased cost, submitted
to the Borrowers and the Agent by such Lender, shall be conclusive and
binding for all purposes, absent error in the calculation of such amounts.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained
by such Lender or any corporation controlling such Lender (taking into
consideration such Lender's (or such controlling corporation's) policies
with
15
respect to capital adequacy) and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to
lend hereunder and other commitments of this type, then, upon written
demand by such Lender (with a copy of such demand to the Agent), the
Borrowers shall pay to the Agent for the account of such Lender, from time
to time as specified by such Lender, without premium or penalty,
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; provided,
however, that at such time such Lender shall be generally assessing such
amounts on a non-discriminatory basis against borrowers under agreements
having provisions similar to this Section. A certificate as to such
amounts submitted to the Borrowers and the Agent by such Lender shall be
conclusive and binding for all purposes, absent error in the calculation
of such amounts.
(c) Each Lender will notify the Company of any change that
will entitle such Lender to compensation under this Section 2.10 as
promptly as practicable, but in any event within 90 days after such Lender
obtains knowledge thereof; provided, however, that, if any Lender fails to
give such notice within 90 days after it obtains knowledge of such change,
such Lender shall, with respect to compensation payable in respect of any
costs resulting from such change, only be entitled to payment for costs
incurred from and after the date that such Lender does give such notice
plus, if such change shall have retroactive effect, costs resulting from
such change during the period of retroactive effect thereof. Any Lender
claiming any additional amounts payable pursuant to this Section agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Eurodollar
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar
Rate Advances hereunder, (a) be Converted into a Base Rate Advance and (b)
the obligation of the Lenders to make Eurodollar Rate Advances or to
Convert Advances into Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The
Borrowers shall make each payment hereunder, 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 U.S. dollars to the Agent at the Agent's Account in
same day funds. The Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or facility
fees ratably (other than amounts payable pursuant to Section 2.10, 2.13 or
9.04(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 and recording of the information contained therein in the
Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves.
(b) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate and of facility fees shall be made by the Agent
on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or facility fees are payable. Each
determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall
be made on the Business Day next succeeding, and such extension of time
shall in such case be included in the computation of payment of interest
or facility fee, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurodollar
Rate
16
Advances to be made in the next following calendar month, such payment
shall be made on the Business Day next preceding.
(d) Unless the Agent shall have received notice from the
applicable 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 may assume that such Borrower has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent any
Borrower shall not have so made such payment in full to the Agent, each
Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day
from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the
Borrowers to or for the account of any Lender or the Agent hereunder or
under the Notes shall be made, in accordance with Section 2.12 or the
applicable provisions of such other documents, free and clear of and
without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, (i)
foreign, United States federal, state and local taxes imposed on its
overall net income and franchise taxes imposed on it in lieu of net income
taxes by the jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized or any political subdivision thereof, or
by any jurisdiction where such Lender or the Agent (as the case may be) is
doing business or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof,
or by any jurisdiction where such Lender's Applicable Lending Office is
doing business or any political subdivision thereof and (ii) United States
state and local withholding taxes (in the appropriate amount) on the gross
amount of interest paid by the Borrowers for which such Lender or the
Agent (as the case may be) is entitled to a credit for such withholding
taxes against a tax described in (i) (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note or any
other documents to be delivered hereunder to any Lender or the Agent, (x)
the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) 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, (y) such Borrower shall make
such deductions and (z) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. For the avoidance of doubt, if any Borrower shall be
required by a court of competent jurisdiction to pay over an amount other
than as Taxes, there shall be no adjustment as to such payment under this
Section 2.13(a).
(b) In addition, the Borrowers shall pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
under the Notes any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes or any other documents to be
delivered hereunder (hereinafter referred to as "Other Taxes").
(c) The Borrowers shall indemnify each Lender and the Agent
for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted by
any jurisdiction on amounts payable under this Section 2.13) imposed on or
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from
the date such Lender or the Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
the Borrowers shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing
such payment to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the
Agent.
17
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the
date of the Assignment and Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to time thereafter
as reasonably requested in writing by the Borrowers (but only so long as
such Lender remains lawfully able to do so), shall provide each of the
Agent and the Borrowers with two original Internal Revenue Service forms
W-8BEN or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, properly certifying that such
Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If
the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes (and tax withheld in excess of such rate shall be
included in Taxes) unless and until such Lender provides the appropriate
forms certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; provided, however, that, if at the date of the
Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender
assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that
the Lender reasonably considers to be confidential, the Lender shall give
notice thereof to the Borrowers and shall not be obligated to include in
such form or document such confidential information. For purposes of this
subsection (e), the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code
(f) For any period with respect to which a Lender has failed
to provide the Borrowers with the appropriate form, certificate or other
document described in Section 2.13(e) (other than if such failure is due
to a change in law, or in the interpretation or application thereof,
occurring subsequent to the date on which a form, certificate or other
document originally was required to be provided, or if such form otherwise
is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.13(a) or (c) with respect to
Taxes imposed by the United States by reason of such failure and the
Borrowers may withhold at the full United States statutory withholding tax
rate on interest (currently, 30%); provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrowers shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
SECTION 2.14. 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 Advances owing to
it (other than pursuant to Section 2.10, 2.13 or 9.04(c)) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the 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 Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off as provided in Section
9.05) 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 2.15. 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
hereunder in respect of Advances. 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 Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the
Advances
18
owing to, or to be made by, such Lender, such Borrower shall promptly
execute and deliver to such Lender a Note payable to such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each 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 each 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 the Borrowers under this Agreement.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and each of the Borrowers agrees that it or its
Subsidiaries, as applicable, shall use such proceeds) solely to pay cash
consideration for the Acquisition and all fees and expenses incurred in
connection with the Acquisition including the fees and expenses owing to
the Agent and the Lenders hereunder, to repay Debt of the Company or to
transfer to the Target sufficient amounts for the repayment of the
Target's (or its Subsidiaries') Debt, and up to $350,000,000 for general
corporate purposes of the Company and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of
the first date on or prior to June 30, 2004 (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change
since December 31, 2003.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company or any of its
Subsidiaries pending or, to the knowledge of the Company, threatened
before any court, governmental agency or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby, and there shall have been no
material adverse change in the status, or financial effect on the
Company or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(b) hereto.
(c) Nothing shall have come to the attention of the Lenders
during the course of their due diligence investigation to lead them
to believe that the information presented at the Lenders' Meeting on
April 29, 2004 was or has become misleading, incorrect or incomplete
in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the
management, records, books of account, contracts and properties of
the Company and its Subsidiaries as they shall have reasonably
requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby
shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect,
all applicable waiting periods in connection
19
with the Acquisition shall have expired without any action being
taken by any competent authority, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders, in each case
that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.
(e) All conditions precedent to the consummation of the
Acquisition (other than the payment of cash consideration from the
proceeds of the initial Borrowing hereunder) shall have been
satisfied substantially in accordance with the terms of the Merger
Agreement, without any waiver or amendment not consented to by the
Lenders of any material term, provision or condition set forth
therein, and in compliance with all applicable laws.
(f) The Company shall have notified each Lender and the
Agent in writing as to the proposed Effective Date.
(g) The Company shall have paid (i) on the Closing Date, all
fees due to the Agent and the Lenders on the Closing Date and (ii)
on or before the Effective Date, all other accrued fees and expenses
of the Agent and the Lenders (including the accrued reasonable fees
and expenses of counsel to the Agent).
(h) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each
Lender a certificate signed by a duly authorized officer of the
Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(i) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient
copies for each Lender:
(i) The Notes to the Lenders to the extent requested
by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) Copies of the unaudited pro forma Consolidated
balance sheet of the Company and its Subsidiaries as at
December 31, 2003, and the related pro forma Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, giving effect to
the Acquisition as of January 1, 2003.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(v) A favorable opinion of the Vice President and
General Counsel of the Company, substantially in the form of
Exhibit D hereto.
(vi) A favorable opinion of Shearman & Sterling LLP,
counsel for the Agent, in form and substance satisfactory to
the Agent.
20
SECTION 3.02. Conditions Precedent to the Initial Borrowing of
Each Designated Subsidiary. The obligation of each Lender to make an
initial Advance to each Designated Subsidiary following its designation as
a Borrower hereunder pursuant to Section 9.12 on the occasion of the
initial Borrowing thereby is subject to the Agent's receipt on or before
the date of such initial Borrowing of each of the following, in form and
substance satisfactory to the Agent and dated such date:
(a) The Designation Letter of such Designated Subsidiary, in
substantially the form of Exhibit E hereto.
(b) The Note of such Designated Subsidiary to the Lenders to
the extent requested by any Lender pursuant to Section 2.15.
(c) A certificate of the Secretary or an Assistant Secretary
(or person performing similar functions) of such Designated
Subsidiary certifying (i) appropriate resolutions of the board of
directors (or persons performing similar functions) of such
Designated Subsidiary approving this Agreement and its Notes, and
all documents evidencing other necessary corporate (or equivalent)
action and governmental approvals, if any, with respect to this
Agreement and its Notes (copies of which shall be attached thereto)
and (ii) the names and true signatures of the officers of such
Designated Subsidiary authorized to sign the Designation Letter of
such Designated Subsidiary and its Notes and the other documents to
be delivered by such Designated Subsidiary hereunder.
(d) A copy of a certificate of the Secretary of State (or
other appropriate Governmental Authority) of the jurisdiction of
organization of such Designated Subsidiary, dated reasonably near
the date of such Borrowing, certifying that such Designated
Subsidiary is duly organized and in good standing (or the equivalent
thereof) under the laws of the jurisdiction of its organization.
(e) A certificate signed by a duly authorized officer of
such Designated Subsidiary, dated as of the date of such Borrowing,
certifying that such Designated Subsidiary has obtained all
authorizations, consents, approvals (including, without limitation,
exchange control approvals) and licenses of any Governmental
Authority or other third party necessary for such Designated
Subsidiary to execute and deliver its Designation Letter and its
Notes and to perform its obligations under this Agreement or any of
its Notes.
(f) Such other documents, opinions and other information as
any Lender, through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each
Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing (a) the
following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by any Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty
by such Borrower that on the date of such Borrowing such statements are
true):
(i) the representations and warranties contained in Section
4.01 (except, in the case of Borrowings made after the initial
Borrowing, the representations set forth in the last sentence of
subsection (e) thereof) (and, if such Borrowing shall have been
requested by a Designated Subsidiary, the representations and
warranties of such Designated Subsidiary contained in its
Designation Letter) are correct on and as of such date, 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 except to
the extent that such representations and warranties expressly relate
to an earlier specified 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;
21
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01,
each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to
be consented to or approved by or acceptable or satisfactory to the
Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the date that the Company, by notice to the Lenders, designates
as the proposed Effective Date, specifying its objection thereto. The
Agent shall promptly notify the Lenders of the occurrence of the Effective
Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio.
(b) The execution, delivery and performance by the Company
of this Agreement and the Notes to be delivered by it, and the
consummation of the Acquisition and the other transactions
contemplated hereby, are within the Company's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Company's charter or code of regulations or (ii)
any applicable law or any contractual restriction in any material
contract or, to the knowledge of the chief financial officer of the
Company, any other contract the breach of which would limit the
ability of any Borrower to perform its obligations under this
Agreement or any Notes, binding on or affecting the Company.
(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 the Company of this Agreement or the
Notes to be delivered by it or for the consummation of the
Acquisition and the other transactions contemplated hereby, other
than authorizations, approvals, actions, notices or filings (i) that
have been duly obtained, taken, given or made and are in full force
and effect or (ii) as to which the failure to obtain, take, give or
make would not reasonably be likely to result in a Material Adverse
Effect. All applicable waiting periods in connection with the
Acquisition have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially
adverse conditions upon the Acquisition.
(d) This Agreement has been, and each of the Notes to be
delivered by it when delivered hereunder will have been, duly
executed and delivered by the Company. This Agreement is, and each
of its Notes when delivered hereunder will be, the legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with their respective terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or law).
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, accompanied by an
opinion of Deloitte & Touche LLP, independent public accountants,
and the Consolidated balance sheet of the Company and its
Subsidiaries as at March 31, 2004, and the related Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the three months then ended, duly certified by the
chief financial officer of the
22
Company, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at March 31,
2004, and said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Company and its Subsidiaries as at such
dates and the Consolidated results of the operations of the Company
and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP consistently applied. Since December 31, 2003,
there has been no Material Adverse Change.
(f) The unaudited Consolidated and consolidating pro forma
balance sheets of the Company and its Subsidiaries as at December
31, 2003, and the related unaudited Consolidated and consolidating
pro forma statements of income and cash flows of the Company and its
Subsidiaries for the year then ended, certified by the Chief
Financial Officer of the Company, copies of which have been
furnished to each Lender, fairly present, to the Chief Financial
Officer's best knowledge, the Consolidated and consolidating pro
forma financial condition of the Company and its Subsidiaries as at
such date and the Consolidated and consolidating pro forma results
of operations of the Company and its Subsidiaries for the period
ended on such date, in each case giving effect to the Acquisition as
of January 1, 2003, all in accordance with GAAP.
(g) There is no pending or, to the Company's knowledge,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting
the Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect (other than the Disclosed
Litigation) or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby, and there has been no adverse
change in the status, or financial effect on the Company or any of
its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(h) The Information Memorandum and any other information,
exhibit or report that has been or will hereafter be furnished by or
on behalf of the Company or any Borrower to the Agent or any Lender
in connection with the negotiation and syndication of this Agreement
or pursuant to the terms of this Agreement is and will be when
furnished, taken as a whole, complete and correct in all material
respects and does not and will not, when furnished, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not
misleading in light of the circumstances under which such statements
were or are made.
(i) The Company 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), and no proceeds of any Advance will
be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock.
(j) No Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(k) The Company is, individually and together with its
Subsidiaries, Solvent. "Solvent" means, with respect to any Person
on a particular date, that on such date (i) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities,
of such Person, (ii) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become
absolute and matured, (iii) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such
Person's ability to pay such debts and liabilities as they mature
and (iv) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and
circumstances
23
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
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,
each Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might by law become a Lien upon its
property; provided, however, that neither such Borrower nor any of
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith
and by proper proceedings.
(c) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which such Borrower or such Subsidiary operates; provided,
however, that such Borrower and its Subsidiaries may self-insure to
the same extent as other companies engaged in similar businesses and
owning similar properties and to the extent consistent with prudent
business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory)
and franchises; provided, however, that such Borrower and its
Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(b) and provided further that neither such
Borrower nor any of its Subsidiaries shall be required to preserve
any right or franchise if the Board of Directors of such Borrower or
such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Borrower or
such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to such Borrower, such
Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time
to time, upon reasonable notice and during normal business hours,
permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties
of, such Borrower and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of such Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of such Borrower and each such
Subsidiary in accordance with GAAP in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
24
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Company, the Consolidated balance sheet of
the Company and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Company as
having been prepared in accordance with GAAP and certificates
of the chief financial officer of the Company as to compliance
with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03;
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Company, a copy
of the annual report for such year for the Company and its
Subsidiaries, containing the Consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Required
Lenders by Deloitte & Touche LLP or other independent public
accountants reasonably acceptable to the Required Lenders.
There shall also be provided, in reasonable detail, the
calculations necessary to demonstrate compliance with Section
5.03;
(iii) as soon as possible and in any event within five
days after a responsible officer of the Company knows or
should have known of the occurrence of each Default continuing
on the date of such statement, a statement of the chief
financial officer of the Company setting forth details of such
Default and the action that the Company has taken and/or
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Company sends to any of its
security holders, and copies of all reports and registration
statements that the Company or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental
agency or arbitrator affecting the Company or any of its
Subsidiaries of the type described in Section 4.01(g); and
(vi) such other information respecting the Company or
any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
(i) Pari Passu Status. Ensure, and cause each of its
Designated Subsidiaries to ensure, that the Debt outstanding under
this Agreement and the Notes ranks at least pari passu with all
other senior unsecured Debt of the Company or such Designated
Subsidiary, as the case may be.
(j) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Company or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the
Borrowers will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien on or with
respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, other than:
25
(i) Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto,
(ii) purchase money Liens upon or in any real property
or equipment acquired or held by the Company or any Subsidiary
in the ordinary course of business (including any Lien in
respect of a capitalized lease of personal property) to secure
the purchase price of such property or equipment or to secure
Debt incurred solely for the purpose of financing the
acquisition or lease of such property or equipment, or Liens
existing on such property or equipment at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than
the real property or equipment being acquired or leased, and
no such extension, renewal or replacement shall extend to or
cover any properties not theretofore subject to the Lien being
extended, renewed or replaced,
(iii) Liens asserted by warehousemen, mechanics or
materialmen which Liens are being contested in good faith by
appropriate proceedings diligently conducted and for which
reserves in accordance with GAAP are being maintained on the
books of the Company and any mechanic's, carrier's, landlord's
or similar common law or statutory lien incurred in the normal
course of business which has not been docketed as a judgment,
(iv) Liens or levies for taxes, fees, assessments or
governmental charges not yet due and payable or being
contested in good faith by appropriate proceedings diligently
conducted and Liens resulting from or incurred with respect to
legal proceedings which are being contested in good faith by
appropriate proceedings diligently conducted; provided that
reserves in accordance with GAAP are being maintained on the
books of the Company with respect to such taxes, fees,
assessments, governmental charges and legal proceedings,
(v) Liens securing only workers' compensation,
unemployment insurance or similar obligations and/or deposits
or pledges made in connection with, or to secure payment of,
utilities or similar services, leases, workers' compensation,
unemployment insurance, old age pensions or other social
security obligations,
(vi) Encumbrances as set forth in all deeds, title
insurance and mortgages existing as of the Effective Date in
respect of all real property owned or leased by the Company or
any of its Subsidiaries and any other zoning or deed
restrictions, public utility easements, minor title
irregularities and similar matters having no material adverse
effect as a practical matter on the ownership or use of any of
the real property in question,
(vii) Liens securing or given in lieu of surety, stay,
appeal or performance bonds (other than contracts for the
payment of indebtedness for borrowed money), or deposits
required by law or governmental regulations or by any court
order, decree, judgment or rule or as a condition to the
transaction of business or the exercise of any right,
privilege or license, or Liens arising from a judgment not
constituting an Event of Default,
(viii) Interest or title of a lessor under a lease,
(ix) Liens in favor of the Agent or a Lender, if any,
to secure the obligations of the Borrowers under this
Agreement,
(x) Liens created or assumed in purchasing,
constructing or improving any real property or to which any
real property is subject when purchased; provided, however,
that: (x) the mortgage, security interest or other lien is
confined to the property in question, and (y) the indebtedness
secured thereby is non-recourse as to the Company and does not
exceed the total cost of the purchase, construction or
improvement,
26
(xi) Any transfer of a check or other medium of
payment for deposit or collection, or any similar transaction
in the normal course of business,
(xii) Any financing statement perfecting a security
interest that would be permissible under this Section 5.02(a),
(xiii) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; provided that such Liens were not
created in contemplation of such merger, consolidation or
acquisition and do not extend to any assets other than those
of the Person so merged into or consolidated with the Company
or such Subsidiary or acquired by the Company or such
Subsidiary,
(xiv) other Liens securing Debt in an aggregate
principal amount not to exceed $5,000,000 at any time
outstanding, and
(xv) the replacement, extension or renewal of any Lien
permitted by clause (i), (ii), (viii), (ix) or (xii) above
upon or in the same property theretofore subject thereto or
the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby.
(b) Mergers, Acquisitions, Etc. Merge with or into or
consolidate with any other Person; liquidate, wind up, dissolve or
divide; acquire all or substantial all of the properties or assets
of any ongoing concern or going line of business; acquire all or
substantially all of the capital stock or other equity interests in
or of any other Person other than in the ordinary course of
business; or agree, become or remain liable (contingently or
otherwise) to do any of the foregoing, or permit any of its
Subsidiaries to do any of the foregoing, except:
(i) the Company may consummate the Acquisition,
(ii) the Company or any Subsidiary may acquire all or
substantially all of the properties or assets of any other
Person, acquire all or substantially all of the capital stock
or other equity interests in or of any other Person, or become
or remain liable (contingently or otherwise) to do any of the
foregoing, provided that the total value of the consideration
for all transactions permitted under this clause (ii) shall
not exceed $25,000,000 in the aggregate,
(iii) a directly or indirectly wholly-owned Subsidiary
of the Company (or any Subsidiary of such Subsidiary) may
merge with or into or consolidate with or into any other
wholly-owned Subsidiary of the Company (or any Subsidiary of
such Subsidiary),
(iv) the Company may acquire all or substantially all
of the properties or assets of any Subsidiary, and
(v) a directly or indirectly wholly-owned Subsidiary
of the Company (or any Subsidiary of such Subsidiary) may
merge with the Company, provided that the Company shall be the
surviving corporation, and
provided further, in the case of each transaction permitted in
clauses (i), (ii) and (iii), that no Default shall have occurred and
be continuing at the time of such proposed transaction or would
result therefrom.
(c) Debt. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Debt other than:
(i) Debt outstanding under this Agreement and the
Notes,
27
(ii) Debt owed to the Company or to a direct or
indirect wholly-owned Subsidiary of the Company,
(iii) Debt existing as of March 31, 2004 and described
on Schedule 5.02(c) hereto (the "Existing Debt"), and any Debt
extending the maturity of, or refunding or refinancing, in
whole or in part, the Existing Debt, provided that the
principal amount of such Existing Debt shall not be increased
above the principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be changed,
as a result of or in connection with such extension, refunding
or refinancing,
(iv) Debt secured by Liens permitted by Section
5.02(a)(ii) or (xi) aggregating for all of the Company's
Subsidiaries not more than $5,000,000 at any one time
outstanding,
(v) unsecured Debt incurred in the ordinary course of
business aggregating for the Company and its Subsidiaries, of
which not more than $10,000,000 at any one time outstanding
shall be incurred by Subsidiaries of the Company,
(vi) secured Debt incurred in the ordinary course of
business aggregating for the Company and its Subsidiaries not
more than $5,000,000 at any time outstanding, and
(vii) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business.
(d) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except (i) sales of inventory in the ordinary course of its
business, (ii) sales, transfers or other dispositions of obsolete or
worn-out tools, equipment or other property (including leasehold
interests) no longer used or useful in business and sales of
intellectual property determined to be uneconomical, negligible or
obsolete, (iii) in a transaction authorized by subsection (b) of
this Section, (iv) sales, leases, transfers and other dispositions
of assets by (x) the Company to any Subsidiary or (y) by any
Subsidiary to the Company or any other Subsidiary and (v) sales of
assets for fair value in an aggregate amount not to exceed
$50,000,000 in any year, provided that in the case of the sale of
any asset in a single transaction or a series of related
transactions in an aggregate amount exceeding $20,000,000, the fair
value of such asset shall have been determined in good faith by the
Board of Directors of the Company, provided that in the case of
sales of assets pursuant to this clause (v), the Borrowers shall, on
the date of receipt by any Borrower or any of its Subsidiaries of
the Net Cash Proceeds from such sale, prepay the Advances pursuant
to, and in the amount and order of priority set forth in, Section
2.09(b), as specified therein.
(e) Investments in Other Persons. Make or hold, or permit
any of its Subsidiaries to make or hold, any Investment in any
Person other than:
(i) Investments by the Company and its Subsidiaries in
their Subsidiaries outstanding on the date hereof, Investments
in Subsidiaries of the Company as required or is reasonably
desirable to comply with thin capitalization rules in
jurisdictions outside the United States and additional
investments in wholly owned Subsidiaries in an aggregate
amount invested from the date hereof not to exceed
$10,000,000;
(ii) Investments by the Company made as capital
contributions to any of its direct or indirect Subsidiaries
for the purpose of repaying, prepaying or otherwise retiring
Debt of the Target or its direct or indirect Subsidiaries
existing at the date of the Acquisition or restructuring
Subsidiaries of the Borrower in connection with the
Acquisition;
28
(iii) loans and advances to employees in the ordinary
course of the business of the Company and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $2,000,000 at any time outstanding;
(iv) Investments in Marketable Securities;
(v) Investments made by the Company or its
Subsidiaries in joint ventures as required by the applicable
joint venture agreement in effect as of the date hereof;
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(c)(ii);
(vii) any endorsement of a check or other medium of
payment for deposit or collection, or any similar transaction
in the ordinary course of business;
(viii) the Company and its Subsidiaries may acquire
and hold receivables and similar items owing to them in the
ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(ix) the Guaranteed Obligations;
(x) intercompany loans and advances permitted by
Section 5.02(c)(ii);
(xi) the Company and its Subsidiaries may acquire and
own Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers
and suppliers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in
the ordinary course of business;
(xii) Investments by Subsidiaries of the Company
organized outside of the United States in the following (or
the equivalent thereof in the applicable foreign
jurisdiction): (A) time deposits maturing within one year from
the date of purchase thereof, including certificates of
deposit issued by any bank or trust company organized outside
of the United States that has total assets aggregating at
least $200,000,000 or the equivalent in a foreign currency,
(B) fully collateralized repurchase agreements having a term
of not more than 30 days and covering securities described in
subsection (A) above entered into with any bank or trust
company described in subsection (A) above, or (C) investments
in money market funds substantially all of the assets of which
are comprised of securities described in (A) and (B) above;
(xiii) loans and advances to customers and vendors in
the ordinary course of business of the Company and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding; and
(xiv) other Investments in an aggregate amount invested
not to exceed $10,000,000.
(f) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to
declare or pay dividends or other distributions in respect of its
equity interests or repay or prepay any Debt owed to, make loans or
advances to, or otherwise transfer assets to or invest in, the
Company or any Subsidiary of the Company (whether through a covenant
restricting dividends, loans, asset transfers or investments, a
financial covenant or otherwise), except (i) any agreement or
instrument evidencing Debt existing on the date hereof and (ii) any
agreement in effect at the time such Subsidiary becomes a Subsidiary
of the Company, so long as such agreement was not entered into
solely in contemplation of such Person becoming a Subsidiary of the
Company.
29
(g) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by GAAP.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the
business of the Company and its Subsidiaries considered as a whole
as carried on at the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) Debt/EBITDA Ratio. Maintain a ratio of Consolidated Debt
to Consolidated EBITDA for the period of twelve months most recently
ended of not greater than 5.75 : 1.00.
(b) Interest Coverage Ratio. Maintain a ratio of
Consolidated EBITDA for the period of four quarters most recently
ended to cash interest payable on, and amortization of debt discount
in respect of, all Debt (other than Debt of the Target outstanding
at the date of the Acquisition) during such period, by the Company
and its Subsidiaries of not less than 3.50 : 1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) 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 or other amounts payable under this Agreement or any Note
within four Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower
herein or by any Borrower (or any of its corporate officers) in
connection with this Agreement shall prove to have been incorrect in
any material respect when made; or
(c) (i) The Borrowers shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e) or
(h), 5.02 or 5.03, or (ii) the Borrowers shall fail to perform or
observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure
shall remain unremedied for 15 days after written notice thereof
shall have been given to the Company by the Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is
outstanding in a principal amount of at least $25,000,000 in the
aggregate at any one time (but excluding Debt outstanding hereunder)
of the Company or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or
any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated maturity
thereof; or
30
(e) The Company or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or 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 the Company or any of its Subsidiaries 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 60
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 the Company or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$25,000,000 in the aggregate shall be rendered against the Company or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 10 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; provided, however, that any such judgment or order shall
not be an Event of Default under this Section 6.01(f) 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
(g) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing 20% or more of
the combined voting power of all Voting Stock of the Company; or (ii)
during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Company shall cease for any reason
to constitute a majority of the board of directors of the Company; or
(h) The Company or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Lenders, shall be reasonably likely
to incur liability in excess of $25,000,000 in the aggregate as a result
of one or more of the following: (i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan;
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 the Borrowers, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to 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 Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to any
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE VII
31
GUARANTY
SECTION 7.01. Guaranty. The Company hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at
scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all obligations of each other Borrower now or hereafter
existing under or in respect of this Agreement and the Notes of such Borrower
(including, without limitation, any extensions, modifications, substitutions,
amendments or renewals of any or all of the foregoing obligations), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract causes of action, costs, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Agent or any Lender in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, the
Company's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Borrower to the Agent or
any Lender under or in respect of this Agreement and its Notes but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Borrower.
Notwithstanding any other provisions of this Agreement, stock of a foreign
entity directly held by the Company shall not serve as security for the
Guaranteed Obligations, other than stock of any such foreign entity representing
no more than 65% of the total combined voting power of all classes of stock of
such entity entitled to vote.
SECTION 7.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the applicable Notes, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Agent or any Lender with respect thereto. The obligations
of the Company under or in respect of this Guaranty are independent of the
Guaranteed Obligations or any other obligations of any other Borrower under or
in respect of this Agreement and the Notes, and a separate action or actions may
be brought and prosecuted against the Company to enforce this Guaranty,
irrespective of whether any action is brought against any other Borrower or
whether any other Borrower is joined in any such action or actions. The
liability of the Company under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and to the extent not prohibited by applicable
law, the Company hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement, any
Note or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Borrower under or in respect of this Agreement,
and Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Borrower or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, if any, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Borrower under this
Agreement or the Notes or any other assets of any Borrower or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Borrower or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to any
Borrower any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower now or hereafter known to the Agent or such Lender (the Company
waiving any duty on the part of the Agent and the Lenders to disclose such
information);
32
(g) the release or reduction of liability of any other guarantor
or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Borrower or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender or any other Person
upon the insolvency, bankruptcy or reorganization of any other Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Borrower or
any other Person or any collateral.
(b) The Company hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) The Company hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Company or other rights of the Company to proceed against any of the other
Borrowers, any other guarantor or any other Person or any collateral and
(ii) any defense based on any right of set-off or counterclaim against or
in respect of the obligations of the Company hereunder.
(d) The Company hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to the Company any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Borrower or any of its Subsidiaries now or hereafter known by the Agent or
such Lender.
(e) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated
by this Agreement and that the waivers set forth in Section 7.02 and this
Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company hereby unconditionally and
irrevocably agrees, so long as any Event of Default has occurred and
is continuing, not to exercise any rights that it may now have or hereafter
acquire against any other Borrower or any other insider guarantor that arise
from the existence, payment, performance or enforcement of the Company's
obligations under or in respect of this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Agent
or any Lender against any Borrower or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Borrower or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Company in
violation of the immediately preceding sentence at any time prior to the later
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty and (b) the Termination Date, such amount
shall be received and held in trust for the benefit of the Agent and the
Lenders, shall be segregated from other property and funds of the Company and
shall forthwith be paid or delivered to the Agent in the same form as so
received (with any necessary endorsement or assignment) to be
33
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of this Agreement, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) the Company
shall make payment to the Agent or any Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash and
(iii) the Termination Date shall have occurred, the Agent and the Lenders will,
at the Company's request and expense, execute and deliver to the Company
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Company of an interest
in the Guaranteed Obligations resulting from such payment made by the Company
pursuant to this Guaranty.
SECTION 7.05. Subordination. The Company hereby subordinates any and
all debts, liabilities and other obligations ------------- owed to the Company
by each other Borrower (the "Subordinated Obligations") to the Guaranteed
Obligations to the extent and in the manner hereinafter set forth in this
Section 7.05:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default (including the commencement and continuation of any
proceeding under any bankruptcy law relating to any other Borrower), the
Company may receive regularly scheduled payments from any other Borrower
on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any bankruptcy law relating to
any other Borrower), however, unless the Required Lenders otherwise agree,
the Company shall not demand, accept or take any action to collect any
payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any bankruptcy law relating to any other Borrower, the Company
agrees that the Agent and the Lenders shall be entitled to receive payment
in full in cash of all Guaranteed Obligations (including all interest and
expenses accruing after the commencement of a proceeding under any
bankruptcy law, whether or not constituting an allowed claim in such
proceeding ("Post Petition Interest")) before the Company receives payment
of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Event of Default (including the commencement and continuation of any
proceeding under any bankruptcy law relating to any other Borrower), the
Company shall, if the Agent so requests, collect, enforce and receive
payments on account of the Subordinated Obligations as trustee for the
Agent and the Lenders and deliver such payments to the Agent on account of
the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer,
but without reducing or affecting in any manner the liability of the
Company under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default (including the commencement and
continuation of any proceeding under any bankruptcy law relating to any
other Borrower), the Agent is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of the Company,
to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to
require the Company (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received
on such obligations to the Agent for application to the Guaranteed
Obligations (including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and (ii) the Termination Date, (b) be
binding upon the Company, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the
Advances owing to it and the Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to the Agent or such Lender herein or otherwise, in each case as
and to the
34
extent provided in Section 9.07. The Company shall not have the right
to assign its rights under this Article VII or any interest in this Article VII
without the prior written consent of the Agent and the Lenders.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by any Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 9.07; (ii) may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of any Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of any Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. Citicorp and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citicorp 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 Citicorp in its
individual capacity. Citicorp and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the Company,
any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citicorp were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose information obtained or received by it or any of
its affiliates relating to the Company or its Subsidiaries to the extent such
information was obtained or received in any capacity other than as Agent.
SECTION 8.04. 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.
35
SECTION 8.05. 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 owed to each of them (or if no
Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender shall
be liable for any portion of the Indemnified Costs resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the Agent
is not reimbursed for such expenses by the Borrowers. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 8.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Company 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 with the consent of the Company, which consent shall not be
unreasonably withheld and shall not be required if any Event of Default has
occurred and is continuing. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $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. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out 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 relate to the performance of its
obligations hereunder.
SECTION 8.08. Other Agents. Each Lender hereby acknowledges that
neither the documentation agent nor any other Lender designated as any "Agent"
on the signature pages hereof (other than the Agent) has any liability hereunder
other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, 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 the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders, (c) reduce the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (f) reduce, subordinate or limit the obligations of the
Company under Section 7.01 or (g) amend this Section 9.01; and provided further
that
36
no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (a) in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered or (y) as and to the extent set forth in Section 9.02(c) and in the
proviso to this Section 9.02(a), if to any Borrower, at the address of the
Company at 00000 Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxx 00000-0000, Attention:
Treasurer (with a copy to the Company's legal division at the same address); 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; and if to the Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx,
Xxxxxxxx 00000, Attention: Bank Loan Syndications Department; 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
the Borrowers and the Agent, provided that materials required to be delivered
pursuant to Section 5.01(h)(i), (ii) or (iv) shall be delivered to the Agent as
specified in Section 9.02(c). All such notices and communications shall, when
mailed, telecopied, telegraphed or e-mailed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VIII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing or any notice of
Conversion delivered pursuant to Section 2.07 may be delivered by any Borrower
or by the Company, on behalf of any other Borrower. Each Designated Subsidiary
hereby irrevocably appoints the Company as its authorized agent to receive and
deliver notices in accordance with this Section 9.02, and hereby irrevocably
agrees that (A) in the case of clause (i) of the immediately preceding sentence,
the failure of the Company to give any notice referred to therein to any such
Designated Subsidiary to which such notice applies shall not impair or affect
the validity of such notice with respect thereto and (B) in the case of clause
(ii) of the immediately preceding sentence, the delivery of any such notice by
the Company, on behalf of any other Borrower, shall be binding on such other
Borrower to the same extent as if such notice had been executed and delivered
directly by such Borrower.
(c) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(h)(i), (ii) and (iv)
shall be delivered to the Agent in an electronic medium in a format reasonably
acceptable to the Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Company agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Company, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications") available
to the Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the "Platform"). The Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are 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.
(d) 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; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by
37
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 e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrowers agree to pay on
demand all reasonable, out-of-pocket costs and expenses of only the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrowers further agree to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 9.04(a).
(b) The Borrowers agree to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Company or any of its Subsidiaries or any Environmental Action
relating in any way to the Company or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 9.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrowers also agree not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by any Borrower to or for the account of a
Lender (i) other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.07, 2.09 or 2.11,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Company pursuant to Section 9.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.07, 2.09 or 2.11, the applicable
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, 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.
38
(d) Without prejudice to the survival of any other agreement of
any Borrower hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Advances due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Borrower against any and
all of the obligations of the Borrowers now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Company 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 Company, the
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, if demanded by the Company (following a demand by such Lender pursuant to
Section 2.10 or 2.13) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Company pursuant to this Section 9.07(a) shall be arranged by
the Company after consultation with the Agent and shall be either an assignment
of all of the rights and obligations of the assigning Lender under this
Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Company pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrowers or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note subject to such assignment and
a processing and recordation fee of $3,500 payable by the parties to each such
assignment, provided, however, that in the case of each assignment made as a
result of a demand by the Company, such recordation fee shall be payable by the
Company except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Company to an Eligible Assignee that is an
existing Lender, and (vii) any Lender may, without the approval of the Company
and the Agent, assign all or a portion of its rights to any of its Affiliates.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned
39
by it pursuant to such Assignment and Acceptance, relinquish its rights (other
than its rights under Section 2.10, 2.13 and 9.04 to the extent any claim
thereunder relates to an event arising prior such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company.
(d) The Agent shall maintain at its address referred to in Section
9.02 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
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Company or any of its Affiliates) in or to all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and any
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
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) 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 Note, or any consent to any
departure by any Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
40
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company furnished to such Lender by
or on behalf of the Company; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Company received by it from such Lender.
(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.
(h) Designation. (i) Notwithstanding anything to the contrary
contained herein, any Lender (a "Designating Lender") may grant to one or more
special purpose funding vehicles (each, an "SPV"), identified as such in writing
from time to time by the Designating Lender to the Agent and the Company, the
option to provide to the Borrowers all or any part of any Advance that such
Designating Lender would otherwise be obligated to make to the Borrowers
pursuant to this Agreement; provided that (A) nothing herein shall constitute a
commitment by any SPV to make any Advance, (B) if an SPV fails to provide all or
any part of such Advance, the Designating Lender shall be obligated to make such
Advance pursuant to the terms hereof and (C) the Designating Lender shall, at
all times, remain liable for any indemnity or other payment obligation with
respect to its Commitment hereunder. The making of a Advance by an SPV hereunder
shall utilize the Commitment of the Designating Lender to the same extent, and
as if such Advance were made by such Designating Lender.
(ii) As to any Advances or portion thereof made by it, each SPV
shall have all the rights that the Designating Lender making such Advances
or portion thereof would have had under this Agreement; provided, however,
that each SPV shall have granted to its Designating Lender an irrevocable
power of attorney, to deliver and receive all communications and notices
under this Agreement and to exercise on such SPV's behalf, all of such
SPV's voting rights under this Agreement. No additional Notes shall be
required to evidence the Advances or portion thereof made by an SPV; and
the related Designating Lender shall be deemed to hold its Note, if any,
as agent for such SPV to the extent of the Advances or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV.
(iii) Each party hereto hereby agrees that no SPV shall be liable
for any indemnity or payment under this Agreement for which a Lender would
otherwise be liable. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, it will not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 9.07(h) or otherwise in this Agreement, any SPV
may (A) at any time and without paying any processing fee therefor, assign
or sell a participation in all or a portion of its interest in any
Advances to the Designating Lender or to any financial institutions
providing liquidity and/or credit support to or for the account of such
SPV to support the funding or maintenance of Advances and (B) disclose on
a confidential basis any non-public information relating to its Advances
to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancements to such SPV. This Section
9.07(h) may not be amended without the written consent of any Designating
Lender affected thereby.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
written consent of the Company, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective Eligible 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.
41
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby 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 Designated Subsidiary hereby agrees that service of
process in any such action or proceeding brought in the any such New York State
court or in such federal court may be made upon the Company at its address set
forth in Section 9.02 and each such Borrower hereby irrevocably appoints the
Company its authorized agent to accept such service of process, and agrees that
the failure of the Company to give any notice of any such service shall not
impair or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company hereby further irrevocably
consents to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the Company at its address specified pursuant to Section
9.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 9.12. Designated Subsidiaries. (a) Designation. The Company
may at any time and from time to time by delivery to the Agent of a Designation
Letter, duly executed by the Company and a wholly owned Subsidiary organized
within the United States and in substantially the form of Exhibit E hereto,
designate such Subsidiary as a "Designated Subsidiary" for all purposes of this
Agreement, and, upon fulfillment of the applicable conditions set forth in
Section 3.02 and after such Designation Letter is accepted by the Agent, such
Subsidiary shall thereupon become a Designated Subsidiary for all purposes of
this Agreement and, as such, shall have all of the rights and obligations of a
Borrower hereunder. The Agent shall promptly notify each Lender of each such
designation by the Company and the identity of each such Designated Subsidiary.
(b) Termination. Upon the payment and performance in full of all
of the indebtedness, liabilities and obligations of any Designated Subsidiary
under this Agreement and the Notes issued by it, then, so long as at such time
such Designated Subsidiary has not submitted a Notice of Borrowing, such
Designated Subsidiary's status as a Borrower and as a Designated Subsidiary
shall terminate upon notice to such effect from the Agent to the Lenders (which
notice the Agent shall promptly deliver to the Lenders following its receipt of
such a request from the Company). Thereafter, the Lenders shall be under no
further obligation to make any Advances to such Designated Subsidiary.
[The remainder of this page is intentionally left blank.]
42
SECTION 9.13. 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 the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE LUBRIZOL CORPORATION
By_____________________________
Title:
By_____________________________
Title:
CITICORP NORTH AMERICA, INC.,
as Agent
By_____________________________
Title:
Initial Lenders
Commitment
$1,100,000,000 CITICORP NORTH AMERICA, INC.
By_____________________________
Title:
$435,000,000 KeyBank National Association
By_______________________
Title:
$435,000,000 ABN AMRO BANK N.V.
By_______________________
Title:
$250,000,000 WACHOVIA CAPITAL INVESTMENTS, INC.
By_______________________
Title:
$115,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By_______________________
Title:
$115,000,000 PNC BANK, NATIONAL ASSOCIATION
By_______________________
Title:
$2,450,000,000 Total of the Commitments
