Exhibit 10.1
[Execution copy]
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364-DAY CREDIT AGREEMENT
dated as of
March 31, 2006
Between
INTERNATIONAL PAPER COMPANY
The LENDERS Party Hereto
CITIBANK, N.A.
as Syndication Agent
-----------------
BANC OF AMERICA SECURITIES LLC,
BNP PARIBAS and
DEUTSCHE BANK SECURITIES INC.
as Documentation Agents
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X.X. XXXXXX SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS, INC.
as Lead Arrangers and Joint Bookrunners
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JPMORGAN CHASE BANK, N.A.
as Administrative Agent
$500,000,000
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ...........................................................................................1
SECTION 1.01. Defined Terms.............................................................................1
SECTION 1.02. Classification of Loans and Borrowings...................................................15
SECTION 1.03. Terms Generally..........................................................................16
SECTION 1.04. Accounting Terms and Determinations......................................................16
SECTION 1.05. Currencies; Currency Equivalents.........................................................17
ARTICLE II THE CREDITS .........................................................................................17
SECTION 2.01. The Commitments; Borrowings by Approved Borrowers........................................17
SECTION 2.02. Loans and Borrowings.....................................................................18
SECTION 2.03. Requests for Syndicated Borrowings.......................................................19
SECTION 2.04. Competitive Bid Procedure................................................................20
SECTION 2.05. Funding of Borrowings....................................................................22
SECTION 2.06. Interest Elections.......................................................................23
SECTION 2.07. Changes of Commitments...................................................................24
SECTION 2.08. Repayment/Term-Out of Loans; Evidence of Debt............................................25
SECTION 2.09. Prepayment of Loans......................................................................27
SECTION 2.10. Fees ....................................................................................28
SECTION 2.11. Interest.................................................................................28
SECTION 2.12. Alternate Rate of Interest...............................................................29
SECTION 2.13. Increased Costs..........................................................................30
SECTION 2.14. Break Funding Payments...................................................................31
SECTION 2.15. U.S. Taxes...............................................................................32
SECTION 2.16. Foreign Taxes............................................................................33
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..............................34
SECTION 2.18. Mitigation Obligations; Replacement of Lenders...........................................36
SECTION 2.19. Extension of Commitment Termination Date.................................................37
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................................39
SECTION 3.01. Corporate Existence......................................................................39
SECTION 3.02. Financial Condition......................................................................39
SECTION 3.03. Litigation...............................................................................39
SECTION 3.04. No Breach................................................................................39
SECTION 3.05. Corporate Action of the Company..........................................................40
SECTION 3.06. Approvals................................................................................40
SECTION 3.07. Use of Loans.............................................................................40
SECTION 3.08. ERISA ...................................................................................40
SECTION 3.09. Taxes ...................................................................................40
SECTION 3.10. Investment Company Act...................................................................40
SECTION 3.11. Credit Agreements........................................................................40
SECTION 3.12. Hazardous Materials and Environmental Matters............................................41
SECTION 3.13. Full Disclosure..........................................................................41
SECTION 3.14. Existence of Approved Borrowers..........................................................42
SECTION 3.15. No Breach................................................................................42
SECTION 3.16. Corporate Action.........................................................................42
SECTION 3.17. Approvals................................................................................42
SECTION 3.18. Taxes on Payments of Approved Borrowers..................................................42
ARTICLE IV GUARANTEE ...........................................................................................42
SECTION 4.01. Guarantee................................................................................42
SECTION 4.02. Obligations Unconditional................................................................43
SECTION 4.03. Reinstatement............................................................................44
SECTION 4.04. Subrogation..............................................................................44
SECTION 4.05. Remedies.................................................................................44
SECTION 4.06. Continuing Guarantee.....................................................................44
ARTICLE V CONDITIONS ...........................................................................................44
SECTION 5.01. Effective Date...........................................................................44
SECTION 5.02. Initial Loan to any Approved Borrower....................................................46
SECTION 5.03. Each Credit Event........................................................................46
ARTICLE VI COVENANTS OF THE COMPANY.............................................................................47
SECTION 6.01. Financial Statements.....................................................................47
SECTION 6.02. Litigation...............................................................................48
SECTION 6.03. Corporate Existence, Etc.................................................................49
SECTION 6.04. Insurance................................................................................49
SECTION 6.05. Use of Proceeds..........................................................................49
SECTION 6.06. Prohibition of Fundamental Changes.......................................................49
SECTION 6.07. Limitation on Liens......................................................................50
SECTION 6.08. Total Debt to Total Capital Ratio........................................................52
SECTION 6.09. Minimum Consolidated Net Worth...........................................................53
ARTICLE VII EVENTS OF DEFAULT ..................................................................................53
ARTICLE VIII THE ADMINISTRATIVE AGENT...........................................................................55
ARTICLE IX MISCELLANEOUS .......................................................................................57
SECTION 9.01. Notices..................................................................................57
SECTION 9.02. Waivers; Amendments......................................................................58
SECTION 9.03. Expenses; Indemnity; Damage Waiver.......................................................59
SECTION 9.04. Successors and Assigns...................................................................60
SECTION 9.05. Survival.................................................................................63
SECTION 9.06. Counterparts; Integration; Effectiveness.................................................63
SECTION 9.07. Severability.............................................................................64
SECTION 9.08. Right of Setoff..........................................................................64
SECTION 9.09. Governing Law; Jurisdiction; Etc.........................................................64
SECTION 9.10. Waiver Of Jury Trial.....................................................................65
SECTION 9.11. Headings.................................................................................65
SECTION 9.12. Treatment of Certain Information; Confidentiality........................................65
SECTION 9.13. European Monetary Union..................................................................66
SECTION 9.14. Judgment Currency........................................................................68
SECTION 9.15. USA PATRIOT Act..........................................................................69
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements
SCHEDULE III - Approved Borrowers
SCHEDULE IV - MCR COST
SCHEDULE V - Existing Liens
SCHEDULE VI - Excluded Assets
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B-1 - Form of Opinion of Counsel to the Company
EXHIBIT B-2 - Form of Opinion of Counsel to any Approved Borrower
EXHIBIT C - Form of Opinion of Special New York Counsel to JPMorgan
EXHIBIT D-1 - Form of Designation Letter
EXHIBIT D-2 - Form of Termination Letter
364-DAY CREDIT AGREEMENT dated as of March 31, 2006, between
INTERNATIONAL PAPER COMPANY, the LENDERS party hereto, and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
The Company has requested that the Lenders (as hereinafter
defined) make loans to the Company and to Approved Borrowers (as so defined) in
an aggregate principal amount not exceeding $500,000,000 at any one time
outstanding. The Lenders are prepared to make such loans upon the terms and
conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are denominated
in Dollars and bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Additional Margin" means, with respect to any Loan, the rate
per annum specified under the caption "Additional Margin" in the table contained
in the definition of "Applicable Rate" in this Section or otherwise determined
in accordance with such definition.
"Adjusted Eurocurrency Rate" means, for the Interest Period
for any Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the Eurocurrency Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest
Period.
"Administrative Agent" means JPMCB, in its capacity as
Administrative Agent for the Lenders hereunder.
"Administrative Agent's Account" means, for each Currency, an
account in respect of such Currency designated by the Administrative Agent in a
notice to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreed Foreign Currency" means, at any time, any of English
Pounds Sterling, Euros, Swedish Kroner, Swiss Francs, Japanese Yen, and, with
the agreement of the Required Lenders, any other Foreign Currency, so long as,
in respect of any such specified Currency or other Foreign Currency, at such
time (a) such Currency is dealt with in the London interbank deposit market, (b)
such Currency is freely transferable and convertible into Dollars in the London
foreign exchange market and (c) no central bank or other governmental
authorization in the country of issue of such Currency (including, in the case
of the Euro, any authorization by the European Central Bank) is required to
permit use of such Currency by any Lender for making any Loan hereunder and/or
to permit the Company to borrow and repay the principal thereof and to pay the
interest thereon, unless such authorization has been obtained and is in full
force and effect.
"Alternate Base Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all times be
equal to the higher of (a) the rate of interest announced publicly by JPMCB in
New York, New York, from time to time, as JPMCB's prime rate and (b) 0.50% per
annum above the Federal Funds Effective Rate. Each change in any interest rate
provided for herein based upon the Alternate Base Rate resulting from a change
in the Alternate Base Rate shall take effect at the time of such change in the
Alternate Base Rate.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to the
facility fees payable hereunder, or with respect to any Syndicated Loan, as the
case may be, the applicable rate per annum set forth below under the caption
"Facility Fee" or "Eurocurrency Margin" and/or "Additional Margin",
respectively, based upon the long-term debt ratings by Xxxxx'x and S&P,
respectively, applicable on such date to the Index Debt:
====================== =============== ==================== ===================
Long-term debt rating
S&P/Xxxxx'x Facility Fee Eurocurrency Margin Additional Margin
---------------------- --------------- -------------------- -------------------
A-/A3 6.0 bps 24.0 bps 10.0 bps
or above
---------------------- --------------- -------------------- -------------------
BBB+/Baa1 7.0 bps 33.0 bps 10.0 bps
---------------------- --------------- -------------------- -------------------
BBB/Baa2 8.0 bps 42.0 bps 10.0 bps
---------------------- --------------- -------------------- -------------------
BBB-/Baa3 10.0 bps 52.5 bps 10.0 bps
----------------------- --------------- -------------------- ------------------
BB+/Ba1 15.0 bps 72.5 bps 10.0 bps
or lower
====================== =============== ==================== ===================
For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in the lowest
category in the schedule above; (ii) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Index Debt shall fall within
different categories in the schedule above, the Applicable Rate shall be based
on the higher of the two ratings; (iii) if the ratings established or deemed to
have been established by Xxxxx'x and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Xxxxx'x or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency; and (iv) if any Event of Default shall have
occurred and be continuing, each of Xxxxx'x and S&P shall be deemed to have
established a rating in the lowest category in the schedule above. Each change
in the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx'x or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Company (on its own behalf and on behalf
of each Approved Borrower) and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Approved Borrower" means (i) each of the entities set forth
on Schedule III and (ii) any Wholly Owned Consolidated Subsidiary of the Company
as to which a Designation Letter has been delivered to the Administrative Agent
and as to which a Termination Letter shall not have been delivered to the
Administrative Agent, which Subsidiary has been approved as a borrower hereunder
by the Administrative Agent, all in accordance with Section 2.01(b).
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee pursuant to Section 9.04, in
substantially the form of Exhibit A.
"Aussedat Rey" means Aussedat Rey S.A., a French corporation.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" means the Company and each Approved Borrower.
"Borrowing" means (a) all ABR Loans made, converted or
continued on the same date or (b) all Syndicated Eurocurrency Loans or
Competitive Loans of the same Class, Type and Currency that have the same
Interest Period (or any single Competitive Loan that does not have the same
Interest Period as any other Competitive Loan of the same Type and Currency).
For purposes hereof, the date of a Syndicated Borrowing comprising one or more
Loans that have been converted or continued shall be the effective date of the
most recent conversion or continuation of such Loan or Loans.
"Borrowing Request" means a request by a Borrower for a
Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed, (b) if such day relates to a Competitive Bid
Request or Competitive Bid for a Competitive Eurocurrency Loan (other than any
such Loan denominated in Euros), or to a borrowing of, a payment or prepayment
of principal of or interest on, a continuation or conversion of or into, or the
Interest Period for, a Eurocurrency Borrowing (other than any such Borrowing
denominated in Euros), or to a notice by the Company with respect to any such
borrowing, payment, prepayment, continuation, conversion, or Interest Period,
that is also (i) a day (other than a Saturday or Sunday) on which commercial
banks are open for general business in London and (ii) if the applicable
Currency is an Agreed Foreign Currency (other than Euros) that is also a day on
which commercial banks are open for general business in the Principal Financial
Center for such Currency and (c) if such day relates to a Competitive Bid
Request or Competitive Bid for a Competitive Eurocurrency Loan denominated in
Euros, or to a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or the Interest Period for, any Borrowing
denominated in Euros, or to a notice by the Company with respect to any such
borrowing, continuation, payment, prepayment or Interest Period, that is also a
Target Operating Day.
"Capital Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board) and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
Syndicated Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Syndicated Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such commitment may be reduced from time to time
pursuant to Section 2.07 or pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
forth on Schedule I or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial aggregate
amount of the Lenders' Commitments is $500,000,000.
"Commitment Termination Date" means March 30, 2007, subject to
extension as provided in Section 2.19.
"Commitment Utilization Day" means (a) any day on which the
aggregate outstanding principal amount of Loans shall exceed 50% of the
then-current Commitments and (b) any day after the Commitment Termination Date
during which the Loans have been extended as provided in Section 2.08(a).
"Company" means International Paper Company, a New York
corporation.
"Competitive", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"Consolidated Net Worth" means, as at any time, the sum of the
following for the Company and its Consolidated Subsidiaries determined on a
consolidated basis (without duplication) in accordance with GAAP:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the
case of a surplus or retained earnings deficit, minus the amount of
such deficit); minus
(c) the cost of treasury shares.
provided, however, the foregoing calculation shall not take into account any
impairment of goodwill arising under FASB 142.
"Consolidated Subsidiary" means, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Currency" means Dollars or any Foreign Currency.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designation Letter" has the meaning assigned to such term in
Section 2.01(b).
"Dollar Equivalent" means, with respect to any Borrowing
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase the amount of the Foreign Currency of such Borrowing on the
date two Business Days prior to the date of such Borrowing (or, in the case of
any determination made under Section 2.09(b) or redenomination under the last
sentence of Section 2.17(a), on the date of determination or redenomination
therein referred to), based upon the spot selling rate at which the
Administrative Agent offers to sell such Foreign Currency for Dollars in the
London foreign exchange market at approximately 11:00 a.m., London time, for
delivery two Business Days later.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means any and all Federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company or is under common control
(within the meaning of Section 414(c) of the Code) with the Company.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are bearing interest at a rate determined by reference to (a) in the
case of a Syndicated Loan or Borrowing, the Adjusted Eurocurrency Rate, or (b)
in the case of a Competitive Loan or Borrowing, the Eurocurrency Rate.
"Eurocurrency Rate" means, for the Interest Period for any
Eurocurrency Borrowing denominated in any Currency, the rate appearing on the
Screen at the Specified Time on the Quotation Date for such Currency, as IBOR
for deposits denominated in such Currency with a maturity comparable to such
Interest Period. In the event that such rate is not available on the Screen at
such Specified Time for any reason, then, unless the last sentence of Section
9.13(e) is applicable, the Eurocurrency Rate for such Interest Period shall be
the rate at which deposits in such Currency in the amount of $5,000,000 (or its
equivalent in the applicable Foreign Currency) and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at the Specified Time on the Quotation Date; provided that the
Eurocurrency Rate for any Eurocurrency Borrowing for any Interest Period
denominated in Sterling shall be increased by the MCR Cost.
"Eur-IBOR" means for Euros, the rate at which deposits
denominated in Euros are offered to leading banks in the Brussels interbank
market.
"Euros" has the meaning assigned to such term in Section
9.13(a).
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Assets" means the assets of the Company and its
Subsidiaries set forth in Schedule VI.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which such Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 2.18(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.15(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from such Borrower with respect to such withholding tax pursuant to
Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such date
(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 (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by JPMCB from three Federal funds brokers of recognized standing
selected by it.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Competitive Eurocurrency Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Currency" means at any time any currency other than
Dollars.
"Foreign Currency Equivalent" means, with respect to any
amount in Dollars, the amount of any Foreign Currency that could be purchased
with such amount of Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term "Dollar Equivalent", as determined by
the Administrative Agent.
"Foreign Jurisdiction" means any jurisdiction other than the
United States of America, a State thereof, the District of Columbia or any
political subdivision of any of the foregoing.
"Foreign Lender" means any Lender that is organized under the
laws of a Foreign Jurisdiction.
"Foreign Taxes" means, with respect to any Approved Borrower
organized under a Foreign Jurisdiction, all present and future income, stamp,
registration and other taxes and levies, imposts, deductions, charges,
compulsory loans and withholdings whatsoever, and all interest, penalties or
similar amounts with respect thereto, now or hereafter imposed, assessed, levied
or collected by such Foreign Jurisdiction, or any political subdivision or
taxing authority thereof or therein, or by any federal or other association of
or with which such Foreign Jurisdiction may be a member or associated, on or in
respect of this Agreement, the Loans made to such Approved Borrower, the
recording, registration, notarization or other formalization of any thereof, the
enforcement thereof or the introduction thereof in any judicial proceedings, or
on or in respect of any payments of principal, interest, premiums, charges, fees
or other amounts made on, under or in respect of any thereof, excluding, however
income taxes imposed upon the overall net income of any Lender organized under
the laws of such Foreign Jurisdiction and having an applicable lending office in
such Foreign Jurisdiction.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.04, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock of any corporation, or an agreement to purchase, sell or lease (as
lessee or lessor) property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of his, her or its
obligations or an agreement to assure a creditor against loss, and including
causing a bank to open a letter of credit for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
"Guaranteed Obligations" has the meaning assigned to such term
in Section 4.01.
"Guarantor" means the Company in its capacity as the guarantor
under Article IV.
"IBOR" means (a) for all Currencies other than Euros, LIBOR
and (b) for Euros, Eur-IBOR.
"Indebtedness" means, as to any Person: (a) indebtedness
created, issued or incurred by such Person for borrowed money (whether by loan
or the issuance and sale of debt securities); (b) obligations of such Person to
pay the deferred purchase or acquisition price of property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) indebtedness of others
secured by a Lien on the property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by a Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.06.
"Interest Payment Date" means the Commitment Termination Date
and (a) with respect to any ABR Loan, each Quarterly Date, (b) with respect to
any Eurocurrency Loan, the last day of each Interest Period therefor and, in the
case of any Interest Period for a Eurocurrency Loan that is more than three
months long, each day prior to the last day of such Interest Period that occurs
at intervals of three months after the first day of such Interest Period and (c)
with respect to any Fixed Rate Loan, the last day of the Interest Period
therefor and, in the case of any Interest Period for a Fixed Rate Loan that is
more than 90 days long (unless otherwise specified in the applicable Competitive
Bid Request), each day prior to the last day of such Interest Period that occurs
at intervals of 90 days after the first day of such Interest Period, and any
other dates that are specified in the applicable Competitive Bid Request as
Interest Payment Dates with respect to such Loan.
"Interest Period" means:
(a) for any Borrowing (other than an ABR Borrowing), the
Interest Period of the Loan or Loans constituting such Borrowing;
(b) for any Syndicated Eurocurrency Loan, the period
commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month that is one, two, three or six
months thereafter or, with respect to such portion of any Syndicated
Eurocurrency Loan denominated in a Foreign Currency that is scheduled
to be repaid on the Commitment Termination Date, a period of less than
one month's duration commencing on the date of such Loan and ending on
the Commitment Termination Date, as specified in the applicable
Borrowing Request or Interest Election Request;
(c) for any Competitive Eurocurrency Loan, the period
commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month that is one, two, three or six
months thereafter (provided that in no event shall any such Interest
Period end after the Commitment Termination Date) or, with respect to
such portion of any Competitive Eurocurrency Loan denominated in a
Foreign Currency that is scheduled to be repaid on the Commitment
Termination Date, a period of less than one month's duration commencing
on the date of such Loan and ending on the Commitment Termination Date,
as specified in the applicable Competitive Bid Request; and
(d) for any Fixed Rate Loan, the period (which shall not be
less than 30 days or more than 360 days) commencing on the date of such
Loan and ending on the date specified in the applicable Competitive Bid
Request (provided that in no event shall any Interest Period for a
Fixed Rate Loan end after the Commitment Termination Date);
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period pertaining to a Eurocurrency Borrowing (other than an Interest
Period pertaining to a Eurocurrency Borrowing denominated in a Foreign Currency
that ends on the Commitment Termination Date that is permitted to be of less
than one month's duration as provided in this definition) that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and, in the case of a Syndicated Loan,
thereafter shall be the effective date of the most recent conversion or
continuation of such Loan.
"IPISA" means International Paper Investments S.A., a French
corporation.
"JPMCB" means JPMorgan Chase Bank, N.A.
"Kwidzyn" means International Paper Kwidzyn S.A., a Polish
joint stock company.
"Kwidzyn Entity" means (i) Kwidzyn, (ii) Kwidzyn France, as
long as it holds no assets other than (A) interests in Kwidzyn, (B) cash and
cash equivalents and (C) "political risk" insurance policies with respect to
Kwidzyn, and (iii) International Paper Investments (Poland), Inc., a Delaware
corporation, as long as it holds no assets other than (A) interests in and
contracts with Kwidzyn, (B) unless Kwidzyn France is not then a Kwidzyn Entity,
interests in Kwidzyn France and (C) cash and cash equivalents.
"Kwidzyn France" means Celouse et Papiers de Pologne, S.A.,
a French corporation.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"LIBOR" means for all Currencies other than Euros, the rate at
which deposits denominated in such Currency are offered to leading banks in the
London interbank market.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For purposes of this Agreement, the Company or any of its Subsidiaries
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means, with respect to any Loan denominated in or
any payment to be made in any Currency, the local time in the Principal
Financial Center for the Currency in which such Loan is denominated or such
payment is to be made.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the Eurocurrency Rate, the marginal rate of
interest, if any, to be added to or subtracted from the Eurocurrency Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"Margin Stock" means margin stock within the meaning of
Regulations U and X.
"Material Adverse Effect" means a material adverse change in,
or material adverse effect on, the business, results of operations or financial
condition of the Company and its Subsidiaries, taken as a whole.
"Material Subsidiary" means any Subsidiary of the Company that
(a) is an Approved Borrower or (b) has total assets equal to 5% or more of
Consolidated Net Worth.
"Maturity Date" means the Commitment Termination Date or, if
the Term-Out Option shall have exercised and become effective, the date one year
after the Commitment Termination Date (and if such date is not a Business Day,
then the next preceding Business Day).
"MCR Cost" means, with respect to any Lender, the cost imputed
to such Lender of compliance with the Mandatory Cost Rate requirements of the
Bank of England during the relevant period, determined in accordance with
Schedule IV.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Non-Excluded Assets" means all assets of the Company and its
Subsidiaries other than Excluded Assets.
"Obligors" means the Borrowers and the Guarantor.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and which is covered by Title
IV of ERISA, other than a Multiemployer Plan.
"Principal Financial Center" means, in the case of any
Currency, the principal financial center where such Currency is cleared and
settled, as determined by the Administrative Agent.
"Project Indebtedness" means (i) Indebtedness of any Kwidzyn
Entity or (ii) Indebtedness of the Company, IPISA or Aussedat Rey that
constitutes Indebtedness of such Person due solely to the pledge, on a
non-recourse basis, by such Person of Indebtedness or capital stock of any
Kwidzyn Entity held by such Person to secure Indebtedness of any Kwidzyn Entity
to any other Person or Persons or (iii) Indebtedness of the Company or any
Subsidiary incurred to finance the acquisition, construction or development of
Project Assets (as defined in Section 6.07(h)); provided in the case of this
clause (iii) that (x) such Indebtedness is non-recourse to any other assets and
(y) the aggregate principal amount of such Indebtedness may at no time exceed
$200,000,000.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Quotation Date" means, for the Interest Period for any
Eurocurrency Borrowing denominated in any Currency the date two Business Days
prior to the commencement of such Interest Period, provided that if market
practice differs in the relevant interbank market for any Foreign Currency, the
"Quotation Date" for such Foreign Currency shall be determined by the
Administrative Agent in accordance with market practice in the relevant
interbank market (and if quotations would normally be given by leading banks in
the relevant interbank market on more than one day, the "Quotation Date" shall
be the last of such days).
"Register" has the meaning assigned to such term in Section
9.04.
"Regulations D, U and X" means, respectively, Regulations D, U
and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be amended or supplemented from time to time.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time (provided that, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders).
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the aggregate outstanding principal amount of such Lender's
Syndicated Loans at such time.
"S&P" means Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc.
"Screen" means, for any Currency, the relevant display page
for IBOR for such Currency (as determined by the Administrative Agent) on the
Telerate Service; provided that, if the Administrative Agent determines that
there is no such relevant display page for IBOR for such Currency, "Screen"
shall mean the relevant display page for IBOR for such Currency (as determined
by the Administrative Agent) on the Xxxxxx Monitor Money Rates Service. As of
the date hereof, the relevant display page for IBOR for all Currencies other
than Euros is Page 3750, and the relevant display page for IBOR for Euros is
Page 248.
"Specified Time" means, for the Interest Period for any
Eurocurrency Borrowing denominated in any Currency, (a) for all Currencies other
than English Pounds Sterling or Euros, approximately 11:00 a.m., London time, on
the relevant Quotation Date, (b) for English Pounds Sterling, approximately
11:00 a.m., London time, on the relevant Quotation Date and (c) for Euros,
approximately 11:00 a.m., Brussels time, on the relevant Quotation Date.
"Statutory Reserve Rate" means, for the Interest Period for
any Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one minus
the arithmetic mean, taken over each day in such Interest Period, of the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
Board to which the Administrative Agent is subject for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, as to any Person, (a) any corporation of
which at least a majority of the outstanding shares of stock whose class or
classes have by the terms thereof ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person and (b) any partnership or other entity in which such Person and/or
one or more Subsidiaries of such Person shall have an ownership or controlling
interest (whether in the form of voting or participation in profits or capital
contribution) of more than 50%. "Wholly Owned Subsidiary" means any Subsidiary
of which all of such shares or ownership interests, other than (in the case of a
corporation) directors' qualifying shares, are so owned or controlled.
"Syndicated Loan" means a Loan made pursuant to Section 2.01.
"Tangible Assets" means, at any time, Total Assets minus the
sum of the items identified in clause (c) of the definition in this Section 1.01
of the term "Tangible Net Worth".
"Tangible Net Worth" means, as at any time, the sum of the
following for the Company and its Consolidated Subsidiaries determined on a
consolidated basis (without duplication) in accordance with GAAP:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the
case of a surplus or retained earnings deficit, minus the amount of
such deficit); minus
(c) the sum of the following: cost of treasury shares and the
book value of all assets of the Company and its Consolidated
Subsidiaries which should be classified as intangibles (without
duplication of deductions in respect of items already deducted in
arriving at surplus and retained earnings) but in any event including
goodwill, research and development costs, trademarks, trade names,
copyrights, patents and franchises, unamortized debt discount and
expense, and any write-up in the book value of assets resulting from a
revaluation thereof subsequent to December 31, 2003 (other than any
write-up, at the time of its acquisition, in the book value of any
asset acquired subsequent to December 31, 2003).
"Target Operating Day" has the meaning assigned to such term
in Section 9.13(a).
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term-Out Option" means the option of the Borrower to extend
the maturity of the Loans pursuant to Section 2.08(a).
"Termination Letter" has the meaning assigned to such term in
Section 2.01(b).
"Total Assets" means, at any time, the total assets of the
Company and its Consolidated Subsidiaries at such time determined on a
consolidated basis (without duplication) in accordance with GAAP.
"Total Capital" means, at any date, Consolidated Net Worth
plus Total Debt each determined as of such date.
"Total Debt" means, at any time, the aggregate outstanding
principal amount of all Indebtedness of the Company and its Consolidated
Subsidiaries at such time determined on a consolidated basis (without
duplication) in accordance with GAAP.
"2004 Credit Agreement" means the 5-Year Credit Agreement
dated as of March 30, 2004 between the Company, each of the lenders party
thereto and JPMCB, as Administrative Agent.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted
Eurocurrency Rate, the Alternate Base Rate or, in the case of a Competitive Loan
or Borrowing, the Eurocurrency Rate or a Fixed Rate.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Syndicated Loan"), by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Syndicated Eurocurrency Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Syndicated Borrowing"), by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Syndicated
Eurocurrency Borrowing"). Loans and Borrowings may also be identified by
Currency.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms and Determinations.
(a) Accounting Terms. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Lenders hereunder shall (unless otherwise disclosed to the
Lenders in writing at the time of delivery thereof in the manner described in
subsection (b) below) be prepared in accordance with generally accepted
accounting principles applied on a basis consistent with that used in the
preparation of the latest financial statements furnished to the Lenders
hereunder (which, until the first financial statements are delivered under
Section 6.01, shall mean the financial statements referred to in Section 3.02).
All calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with that used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 6.01 unless
(i) the Company shall have objected to determining such compliance on such basis
at the time of delivery of such financial statements or (ii) the Required
Lenders shall so object in writing within 30 days after delivery of such
financial statements, in either of which events such calculations shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
objection is made in respect of the first financial statements delivered under
Section 6.01, shall mean the financial statements referred to in Section 3.02).
(b) Descriptions of Material Variations. The Company shall
deliver to the Lenders at the same time as the delivery of any annual or
quarterly financial statement under Section 6.01 a description in reasonable
detail of any material variation between the application of accounting
principles employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next preceding annual
or quarterly financial statements as to which no objection has been made in
accordance with the last sentence of paragraph (a) above and reasonable
estimates of the difference between such statements arising as a consequence
thereof.
(c) Changes of Fiscal Years. To enable the ready and
consistent determination of compliance with the covenants set forth in Article
VI, the Company will not change the last day of its fiscal year from December 31
of each year, or the last days of the first three fiscal quarters in each of its
fiscal years from March 31, June 30 and September 30 of each year, respectively,
without giving prior notice of such change to each Lender and the Administrative
Agent.
SECTION 1.05. Currencies; Currency Equivalents. At any time,
any reference in the definition of the term "Agreed Foreign Currency" or in any
other provision of this Agreement to the Currency of any particular nation means
the lawful currency of such nation at such time whether or not the name of such
Currency is the same as it was on the date hereof. Except as provided in Section
2.09(b) and the last sentence of Section 2.17(a), for purposes of determining
(i) whether the amount of any Borrowing, together with all other Borrowings then
outstanding or to be borrowed at the same time as such Borrowing, would exceed
the aggregate amount of the Commitments, (ii) the aggregate unutilized amount of
the Commitments and (iii) the outstanding aggregate principal amount of
Borrowings, the outstanding principal amount of any Borrowing that is
denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent
of the amount of the Foreign Currency of such Borrowing determined as of the
date of such Borrowing (determined in accordance with the last sentence of the
definition of the term "Borrowing"). Wherever in this Agreement in connection
with a Borrowing or Loan an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Borrowing or Loan is denominated in a
Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent
of such Dollar amount (rounded to the nearest 1,000 units of such Foreign
Currency).
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments; Borrowings by Approved
Borrowers.
(a) The Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Syndicated Loans in Dollars or in any
Agreed Foreign Currency to the Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in (i)
such Lender's Revolving Credit Exposure exceeding such Lender's Commitment or
(ii) the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Syndicated
Loans.
(b) Borrowings by Approved Borrowers. The Company may, at any
time or from time to time during the Availability Period, designate one or more
Wholly Owned Consolidated Subsidiaries as Borrowers hereunder by furnishing to
the Administrative Agent not less than 10 days prior to the proposed effective
date therefor, a letter (a "Designation Letter") in duplicate, substantially in
the form of Exhibit D-1, duly completed and executed by the Company and such
Subsidiary. Following the delivery of a Designation Letter pursuant to this
Section 2.01(b), the Company shall, promptly upon the request of the
Administrative Agent or any Lender, supply such documentation and other evidence
as is reasonably requested by the Administrative Agent or any Lender in order
for the Administrative Agent or such Lender to carry out and be satisfied it has
complied with the results of all necessary "know your customer" or other similar
checks under all applicable laws and regulations. Upon approval by the
Administrative Agent (which approval shall not be unreasonably withheld, delayed
or conditioned) of such Subsidiary as an Approved Borrower, which approval shall
be evidenced by the Administrative Agent signing and returning to the Company a
copy of such Designation Letter, such Subsidiary shall be an Approved Borrower.
If the Company shall designate as an Approved Borrower hereunder any Subsidiary
not organized under the laws of the United States or any State thereof, any
Lender may, with notice to the Administrative Agent and the Company, fulfill its
Commitment by causing an Affiliate of such Lender to act as the Lender in
respect of such Approved Borrower (and such Lender shall, to the extent of Loans
made to such Approved Borrower, be deemed for all purposes hereof to have pro
tanto assigned such Loans to such Affiliate in compliance with the provisions of
Section 9.04), provided that, such Affiliate is not entitled at the time of
designation to any greater payment under Section 2.16 than such Lender. So long
as all principal and interest on all Loans of any Approved Borrower and all
other amounts payable by such Approved Borrower hereunder have been paid in
full, the Company may terminate its status as an Approved Borrower hereunder by
furnishing to the Administrative Agent a letter (a "Termination Letter"),
substantially in the form of Exhibit D-2, duly completed and executed by the
Company and such Approved Borrower. Any Termination Letter furnished in
accordance with this Section shall be effective upon receipt by the
Administrative Agent. Notwithstanding the foregoing, the delivery of a
Termination Letter with respect to any Approved Borrower shall not affect any
obligation of such Approved Borrower theretofore incurred.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made
as part of a Borrowing consisting of Loans of the same Currency and Type made by
the Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Type of Loans. Subject to Section 2.12, (i) each
Syndicated Borrowing shall be constituted entirely of ABR Loans or of
Eurocurrency Loans denominated in a single Currency as the respective Borrower
may request in accordance herewith, and (ii) each Competitive Borrowing shall be
constituted entirely of Eurocurrency Loans or Fixed Rate Loans denominated in a
single Currency as the respective Borrower may request in accordance herewith.
Each ABR Loan shall be denominated in Dollars. Each Lender at its option may
make any Eurocurrency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrowers to repay such Loan in
accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At
the commencement of the Interest Period for any Syndicated Borrowing, such
Syndicated Borrowing shall be in an aggregate amount of $15,000,000 or a larger
multiple of $1,000,000 (or, in either case, the U.S. Dollar Equivalent thereof);
provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments. Each Competitive Borrowing
shall be in an aggregate amount equal to $15,000,000 or a larger multiple of
$1,000,000 (or, in either case, the U.S. Dollar Equivalent thereof). Borrowings
of more than one Class, Currency and Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of fifteen
Syndicated Eurocurrency Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods.
Notwithstanding any other provision of this Agreement, no Borrower shall be
entitled to request, or to elect to convert to or continue as a Syndicated
Eurocurrency Borrowing, any Borrowing if the Interest Period requested therefor
would end after the Maturity Date.
SECTION 2.03. Requests for Syndicated Borrowings. To request a
Syndicated Borrowing, a Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Syndicated Eurocurrency Borrowing
denominated in Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Syndicated Eurocurrency Borrowing denominated in a Foreign Currency, not later
than 11:00 a.m., London time, three Business Days before the date of the
proposed Borrowing or (c) in the case of an ABR Borrowing, not later than 10:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Company (on its own behalf or, as applicable, on behalf of an Approved
Borrower). Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrower and the aggregate amount and Currency of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) in the case of a Syndicated Borrowing denominated in
Dollars, whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Syndicated Eurocurrency Borrowing, the
Interest Period therefor, which shall be a period contemplated by the
definition of the term "Interest Period" and permitted under Section
2.02(d); and
(v) the location and number of the account to which funds are
to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Syndicated Borrowing is specified, then the
requested Syndicated Borrowing shall be an ABR Borrowing unless an Agreed
Foreign Currency has been specified, in which case the requested Syndicated
Borrowing shall be a Eurocurrency Borrowing denominated in such Agreed Foreign
Currency. If no Interest Period is specified with respect to any requested
Syndicated Eurocurrency Borrowing, (i) if the Currency specified for such
Borrowing is Dollars (or if no Currency has been so specified), the requested
Borrowing shall be made instead as an ABR Borrowing, and (ii) if the Currency
specified for such Borrowing is an Agreed Foreign Currency, the respective
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If no election as to the Currency of a Syndicated Borrowing is
specified, then the requested Syndicated Borrowing shall be denominated in
Dollars. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
(a) Requests for Bids by the Borrowers. Subject to the terms
and conditions set forth herein, from time to time during the
Availability Period a Borrower may request Competitive Bids and may
(but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans denominated in Dollars or in any Foreign
Currency; provided that the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans at
any time shall not exceed the total Commitments. To request Competitive
Bids, a Borrower shall notify the Administrative Agent of such request
by telephone, in the case of a Eurocurrency Borrowing, not later than
11:00 a.m., New York City time, four Business Days (or, in the case of
a Eurocurrency Borrowing denominated in a Foreign Currency, 11:00 a.m.,
London time, five Business Days) before the date of the proposed
Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time (or, in the case of a Fixed Rate
Borrowing denominated in a Foreign Currency, 10:00 a.m., London time),
two Business Days before the date of the proposed Borrowing; provided
that the Borrowers may in the aggregate submit up to (but not more
than) three Competitive Bid Requests on the same day, and a Competitive
Bid Request shall not be made within five Business Days after the date
of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such
telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent
and signed by the Company (on behalf of itself or, as applicable, an
Approved Borrower). Each such telephonic and written Competitive Bid
Request shall specify the following information in compliance with
Section 2.02:
(i) the Borrower and the aggregate amount and Currency of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a
period contemplated by the definition of the term "Interest Period";
and
(v) the location and number of the account to which funds are
to be disbursed, which shall comply with the requirements of Section
2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Administrative Agent and must be received by the Administrative
Agent by telecopy, in the case of a Competitive Eurocurrency Borrowing, not
later than 9:30 a.m, New York City time, three Business Days (or, in the case of
a Competitive Eurocurrency Borrowing denominated in a Foreign Currency, 9:30
a.m, London time, four Business Days) before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m, New York City time (or, in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, 9:30 a.m, London time), on the proposed date
of such Competitive Borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender of such rejection as promptly as practicable. Each Competitive
Bid shall specify (i) the principal amount (which shall be $15,000,000 or a
larger multiple of $1,000,000 (or, in either case, the U.S. Dollar Equivalent
thereof) and which may equal the entire principal amount of the Competitive
Borrowing requested by the respective Borrower) of the Competitive Loan or Loans
that such Lender is willing to make, (ii) the Competitive Bid Rate or
Competitive Bid Rates at which such Lender is prepared to make such Loan or
Loans (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) and (iii) the Interest Period for each such Loan
and the last day thereof.
(c) Notification of Bids by Administrative Agent. The
Administrative Agent shall promptly notify the respective Borrower by telecopy
of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Acceptance of Bids by the Borrowers. Subject only to the
provisions of this paragraph, a Borrower may accept or reject any Competitive
Bid. Such Borrower shall notify the Administrative Agent by telephone, confirmed
by telecopy in a form approved by the Administrative Agent, whether and to what
extent such Borrower has decided to accept or reject each Competitive Bid, in
the case of a Competitive Eurocurrency Borrowing, not later than 10:30 a.m, New
York City time, three Business Days (or, in the case of a Eurocurrency Borrowing
denominated in a Foreign Currency, 2:00 p.m., London time, four Business Days)
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m, New York City time (or, in the
case of a Fixed Rate Borrowing denominated in a Foreign Currency, 10:30 a.m,
London time), on the proposed date of the Competitive Borrowing; provided, that
(i) the failure of such Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) such Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower
rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the
aggregate amount of the Competitive Bids accepted by such Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) of this proviso, such Borrower may accept Competitive Bids at the
same Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) of this proviso, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a principal amount of
$15,000,000 or a larger multiple of $1,000,000 (or, in either case, the U.S.
Dollar Equivalent thereof); provided further that if a Competitive Loan must be
in an amount less than $15,000,000 because of the provisions of clause (iv) of
the first proviso of this paragraph, such Competitive Loan may be in an amount
of $1,000,000 or any multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to such clause (iv) the amounts shall
be rounded to multiples of $1,000,000 in a manner determined by the Company. A
notice given by any Borrower pursuant to this paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent.
The Administrative Agent shall promptly notify each bidding Lender by telecopy
whether or not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative
Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it
shall submit such Competitive Bid directly to the respective Borrower at least
one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
(g) Continuing Obligations of Lenders. The extension of any
Competitive Loan by any Lender shall not constitute utilization of such Lender's
Commitment hereunder, and such Lender shall remain obligated (as provided in
Section 2.17(c)) to make Loans in an amount equal to its pro rata share of the
aggregate Commitments under this Agreement, provided that in no event shall the
sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans at any time exceed the total Commitments.
SECTION 2.05. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the
respective Borrower by promptly crediting the amounts so received, in like
funds, to an account maintained with the Administrative Agent in New York City
and designated by such Borrower in the applicable Borrowing Request or
Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the respective Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
such Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the Federal Funds Effective Rate or (ii) in the case of such
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections.
(a) Elections by Borrowers for Syndicated Borrowings. Each
Syndicated Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Syndicated
Eurocurrency Borrowing, shall have the Interest Period specified in
such Borrowing Request. Thereafter, a Borrower may elect to convert
such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a
Syndicated Eurocurrency Borrowing, may elect the Interest Period
therefor, all as provided in this Section; provided, however, that (i)
a Syndicated Borrowing denominated in one Currency may not be continued
as, or converted to, a Syndicated Borrowing in a different Currency,
(ii) no Syndicated Eurocurrency Borrowing denominated in a Foreign
Currency may be continued if, after giving effect thereto, the sum of
the Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the aggregate Commitments,
and (iii) a Syndicated Eurocurrency Borrowing denominated in a Foreign
Currency may not be converted to a Borrowing of a different Type. A
Borrower may elect different options with respect to different portions
of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such
Borrowing, and the Loans constituting each such portion shall be
considered a separate Borrowing. This Section shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, a Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Company were requesting a Syndicated
Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and
signed by the Company (on behalf of itself or, as applicable, on behalf
of an Approved Borrower).
(c) Information in Interest Election Requests. Each telephonic
and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower and the Borrowing to which such Interest
Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) of this paragraph shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether, in the case of a Borrowing denominated in
Dollars, the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period therefor after giving effect to such election,
which shall be a period contemplated by the definition of the term
"Interest Period" and permitted under Section 2.02(d).
If any such Interest Election Request requests a Eurocurrency Borrowing (whether
denominated in Dollars or a Foreign Currency) but does not specify an Interest
Period, then the respective Borrower shall be deemed to have selected an
Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If a Borrower fails
to deliver a timely Interest Election Request with respect to a Syndicated
Eurocurrency Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, (i) if such Borrowing is
denominated in Dollars, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing, and (ii) if such Borrowing is denominated in a
Foreign Currency, the Company shall be deemed to have selected an Interest
Period of one month's duration. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrowers, then,
so long as an Event of Default is continuing (A) no outstanding Syndicated
Borrowing denominated in Dollars may be converted to or continued as a
Syndicated Eurocurrency Borrowing, (B) unless repaid, each Syndicated
Eurocurrency Borrowing denominated in Dollars shall be converted to an ABR
Borrowing at the end of the Interest Period therefor and (C) no outstanding
Syndicated Eurocurrency Borrowing denominated in a Foreign Currency may have an
Interest Period of more than one month's duration.
SECTION 2.07. Changes of Commitments.
(a) Scheduled Termination. Unless previously terminated the
aggregate amount of the Commitments shall terminate on the Commitment
Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any
time terminate or from time to time reduce the Commitments; provided that (i)
each reduction of the Commitments shall be in an amount that is $15,000,000 or a
larger multiple of $1,000,000 and (ii) the Company shall not terminate or reduce
the Commitments if, after giving effect to any concurrent prepayment of the
Syndicated Loans in accordance with Section 2.09, the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans would exceed the total Commitments.
(c) Notice of Voluntary Termination or Reduction. The Company
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Company may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Company (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.08. Repayment/Term-Out of Loans; Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises
to pay the Loans as follows:
(i) to the Administrative Agent for account of the Lenders the
outstanding principal amount of the Syndicated Loans made to such
Borrower on the Maturity Date, and
(ii) to the Administrative Agent for account of the respective
Lender the then unpaid principal amount of each Competitive Loan of
such Lender made to such Borrower on the last day of the Interest
Period therefor.
Notwithstanding the foregoing, the Company may, by notice to
the Administrative Agent (which shall promptly notify the Lenders) not less than
15 days prior to the Commitment Termination Date, extend the Maturity Date for
all Loans for all Borrowers outstanding at the opening of business on the
Commitment Termination Date to the date one year after the Commitment
Termination Date; provided that such extension shall not be effective unless (i)
no Default or Event of Default shall have occurred and be continuing on each of
the date of such notice requesting such extension and on the Commitment
Termination Date; (ii) the representations and warranties of the Borrowers set
forth in this Agreement shall be true and complete in all material respects on
and as of the date of such notice and the Commitment Termination Date with the
same force and effect as if made on and as of each such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and (iii) the Company shall have
furnished to the Administrative Agent a certificate of a Financial Officer dated
as of the Commitment Termination Date confirming compliance with the conditions
set forth in clauses (i) and (ii) above.
(b) Manner of Payment. Prior to any repayment or prepayment of
any Borrowings hereunder, the respective Borrower shall select the Borrowing or
Borrowings to be paid and shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than 11:00 a.m., New York
City time, three Business Days before the scheduled date of such repayment;
provided that each repayment of Borrowings shall be applied to repay any
outstanding ABR Borrowings before any other Borrowings. If a Borrower fails to
make a timely selection of the Borrowing or Borrowings to be repaid or prepaid,
such payment shall be applied, first, to pay any outstanding ABR Borrowings of
such Borrower and, second, to other Borrowings of such Borrower in the order of
the remaining duration of their respective Interest Periods (the Borrowing with
the shortest remaining Interest Period to be repaid first), and for these
purposes, Competitive Loans shall be deemed to be in the same Class as
Syndicated Loans. Each payment of a Syndicated Borrowing shall be applied
ratably to the Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrowers to such Lender resulting from each Loan made
by such Lender, including the amounts and Currency of principal and interest
payable and paid to such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Administrative Agent.
The Administrative Agent shall maintain accounts in which it shall record (i)
the amount and Currency of each Loan made hereunder, the Class and Type thereof
and each Interest Period therefor, (ii) the amount and Currency of any principal
or interest due and payable or to become due and payable from each Borrower to
each Lender hereunder and (iii) the amount and Currency of any sum received by
the Administrative Agent hereunder for account of the Lenders and each Lender's
share thereof.
(e) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of a Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans made
by it to a Borrower be evidenced by a promissory note. In such event, such
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans.
(a) Optional Prepayments. Each Borrower shall have the right
at any time and from time to time to prepay any Borrowing made to it in
whole or in part, subject to the requirements of this Section; provided
that no Borrower shall have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(b) Mandatory Prepayments.
(i) Determination of Amount Outstanding. On each Quarterly
Date and promptly upon the receipt by the Administrative Agent of a
Currency Valuation Notice (as defined below), the Administrative Agent
shall determine the sum of the aggregate Revolving Credit Exposure plus
the aggregate outstanding principal amount of all Competitive Loans.
For the purpose of this determination, the outstanding principal amount
of any Loan that is denominated in any Foreign Currency shall be deemed
to be the Dollar Equivalent of the amount in the Foreign Currency of
such Loan, determined as of such Quarterly Date or, in the case of a
Currency Valuation Notice received by the Administrative Agent prior to
11:00 a.m., New York City time, on a Business Day, on such Business Day
or, in the case of a Currency Valuation Notice otherwise received, on
the first Business Day after such Currency Valuation Notice is
received. Upon making such determination, the Administrative Agent
shall promptly notify the Lenders and the Company thereof.
(ii) Prepayment. If, on the date of such determination such
sum exceeds 105% of the aggregate amount of the Commitments as then in
effect, the Borrowers shall, if requested by the Required Lenders
(through the Administrative Agent), prepay the Syndicated Loans and
Competitive Loans in such amounts as shall be necessary so that after
giving effect thereto the sum of the aggregate Revolving Credit
Exposure plus the aggregate outstanding principal amount of all
Competitive Loans does not exceed the Commitments.
For purposes hereof, "Currency Valuation Notice" means a notice given by the
Required Lenders to the Administrative Agent stating that such notice is a
"Currency Valuation Notice" and requesting that the Administrative Agent
determine the sum of the aggregate Revolving Credit Exposure plus the aggregate
outstanding principal amount of all Competitive Loans. The Administrative Agent
shall not be required to make more than one valuation determination pursuant to
Currency Valuation Notices within any rolling three month period. Any prepayment
pursuant to this paragraph shall be applied, first, to Syndicated Loans
outstanding and second, to Competitive Loans outstanding.
(c) Notices, Etc. Each Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any optional
prepayment to be made by it hereunder (i) in the case of prepayment of a
Syndicated Eurocurrency Borrowing or of a Competitive Borrowing, not later than
11:00 a.m., New York City time (or, in the case of a Borrowing denominated in a
Foreign Currency, 11:00 a.m., London time), two Business Days before the date of
prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than
11:00 a.m., New York City time, on the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal amount
of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Syndicated Borrowing or Competitive
Borrowing, the Administrative Agent shall advise the relevant Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Syndicated Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11 and shall
be made in the manner specified in Section 2.08(b).
SECTION 2.10. Fees.
(a) Facility Fee. The Company agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the earlier of the date such Commitment
terminates and the Commitment Termination Date; provided that, if such Lender
continues to have any Revolving Credit Exposure after its Commitment terminates,
then such facility fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to
have any Revolving Credit Exposure. Accrued facility fees shall be payable on
each Quarterly Date and on the earlier of the date the Commitments terminate and
the Commitment Termination Date, commencing on the first such date to occur
after the date hereof; provided that any facility fees accruing after the date
on which the Commitments terminate shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) Administrative Agent Fees. The Company agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Company and the Administrative
Agent.
(c) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in Dollars and immediately available funds, to the
Administrative Agent for distribution, in the case of facility fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.11. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus for any
Commitment Utilization Day, the Additional Margin.
(b) Eurocurrency Loans. The Loans constituting each
Eurocurrency Borrowing shall bear interest at a rate per annum equal to (i) in
the case of a Syndicated Eurocurrency Borrowing, the Adjusted Eurocurrency Rate
for the Interest Period for such Borrowing plus the Applicable Rate plus in each
case for any Commitment Utilization Day, the applicable Additional Margin plus
for any day after the Commitment Termination Date during which the Loans have
been extended as provided in Section 2.08(a), .25% or (ii) in the case of a
Competitive Eurocurrency Borrowing, the Eurocurrency Rate for the Interest
Period for such Borrowing plus (or minus, as applicable) the Margin applicable
to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest
at a rate per annum equal to the Fixed Rate plus for any Commitment Utilization
Day, the Additional Margin.
(d) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by a
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(e) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of Syndicated Loans, upon the termination of the Commitments and (if the
Term-Out Option shall be exercised) upon the Maturity Date; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Loan prior to the Commitment Termination Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Syndicated Eurocurrency Borrowing denominated in Dollars prior to the end of the
Interest Period therefor, accrued interest on such Borrowing shall be payable on
the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that (i) interest in respect of
Eurocurrency Borrowings denominated in English Pounds Sterling shall be computed
on the basis of a year of 365 days (or 366 days in a leap year) and (ii)
interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the base rate of JPMCB shall be computed on the
basis of a year of 365 days (or 366 days in a leap year); interest shall in each
case be payable for the actual number of days elapsed (including the first day
but excluding the last day). The applicable Alternate Base Rate, Adjusted
Eurocurrency Rate or Eurocurrency Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for any Eurocurrency Borrowing (the Currency
of such Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted Eurocurrency Rate (in
the case of a Syndicated Eurocurrency Borrowing) or the Eurocurrency
Rate (in the case of a Competitive Eurocurrency Borrowing) for the
Affected Currency for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Competitive Eurocurrency Borrowing, any
Lender that is required to make such Loan) that the Adjusted
Eurocurrency Rate (in the case of a Syndicated Eurocurrency Borrowing)
or the Eurocurrency Rate (in the case of a Competitive Eurocurrency
Borrowing) for the Affected Currency for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
the continuation of any Syndicated Borrowing as, a Syndicated Eurocurrency
Borrowing denominated in the Affected Currency shall be ineffective and, if the
Affected Currency is Dollars, such Syndicated Borrowing (unless prepaid) shall
be continued as, or converted to, an ABR Borrowing, (ii) if the Affected
Currency is Dollars and any Borrowing Request requests a Syndicated Eurocurrency
Borrowing denominated in Dollars, such Borrowing shall be made as an ABR
Borrowing, (iii) if the Affected Currency is a Foreign Currency, any Borrowing
Request that requests a Syndicated Eurocurrency Borrowing denominated in the
Affected Currency shall be ineffective and (iv) any request by a Borrower for a
Competitive Eurocurrency Borrowing denominated in the Affected Currency shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by a Borrower for Competitive
Eurocurrency Borrowings denominated in the Affected Currency may be made to
Lenders that are not affected thereby, and (b) the provisions of this Section
shall not apply to any determination of the Adjusted Eurocurrency Rate or the
Eurocurrency Rate (as the case may be) for the Interest Period for any
Eurocurrency Borrowing if the applicable Eurocurrency Rate is available on the
Screen as contemplated by the first sentence of the definition of "Eurocurrency
Rate".
SECTION 2.13. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted Eurocurrency Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans or Fixed
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurocurrency Loan or Fixed Rate Loan to any
Borrower (or of maintaining its obligation to make any such Loan) or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise), then the respective Borrower will pay to
such Lender, in Dollars, such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Loans made by such Lender to a level below that which such Lender or such
Lender's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Company will pay to such Lender, in Dollars, such additional amount or amounts
as will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender
setting forth the amount or amounts, in Dollars, necessary to compensate such
Lender or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section, and setting forth calculations of such amount or
amounts, shall be delivered to the Company and shall be conclusive absent
manifest error. The respective Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; provided that no
Borrower shall be required to compensate a Lender pursuant to this Section for
any increased costs or reductions incurred more than six months prior to the
date that such Lender notifies the Company of the Change in Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Competitive Loans. Notwithstanding the foregoing
provisions of this Section, a Lender shall not be entitled to compensation
pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly
announced prior to submission of the Competitive Bid pursuant to which such Loan
was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan of any
Borrower other than on the last day of an Interest Period therefor (including as
a result of an Event of Default), (b) the conversion of any Syndicated
Eurocurrency Loan of any Borrower other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan of any Borrower on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.09(c) and is revoked in accordance herewith), (d) the failure by
any Borrower to borrow any Competitive Loan after accepting the Competitive Bid
to make such Loan or (e) the assignment of any Syndicated Eurocurrency Loan or
Fixed Rate Loan of any Borrower other than on the last day of an Interest Period
therefor as a result of a request by the Company pursuant to Section 2.18, then,
in any such event, such Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event.
In the case of a Eurocurrency Loan, the loss to any Lender
attributable to any such event shall be deemed to include an amount determined
by such Lender to be equal to the excess, if any, of (i) the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan denominated in the Currency of such Loan for the period from the date of
such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted Eurocurrency Rate for such
Currency (in the case of a Syndicated Eurocurrency Loan) or the Eurocurrency
Rate for such Currency (in the case of a Competitive Eurocurrency Loan) for such
Interest Period, over (ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for deposits denominated in such
Currency from other banks in the eurocurrency market at the commencement of such
period. No Borrower shall be responsible for losses described in this Section
2.14 arising more than six (6) months prior to its receipt of notice of such
determination by the respective Lender requesting compensation for such loss.
Such notice, to be effective, shall be accompanied by a calculation of such
losses in reasonable detail. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Company and shall be conclusive absent
manifest error. The respective Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. U.S. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of any Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if any Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Company. The Company shall
indemnify the Administrative Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Company by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the United
States of America, or any treaty to which the United States of America is a
party, with respect to payments under this Agreement by any Borrower shall
deliver to the Company (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Company, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments by such Borrower to be made without withholding or at
a reduced rate.
SECTION 2.16. Foreign Taxes.
(a) Payments to be Made Free and Clear of Foreign Taxes. All
payments on account of the principal of and interest on the Loans, fees and all
other amounts payable hereunder by any Approved Borrower organized under a
Foreign Jurisdiction to or for the account of the Administrative Agent or any
Lender, including amounts payable under paragraph (b) of this Section, shall be
made free and clear of and without reduction or liability for Foreign Taxes.
Such Approved Borrower will pay all Foreign Taxes applicable to it, without
charge to or offset against any amount due to the Administrative Agent or any
Lender, prior to the date on which penalties attach thereto, except for any such
Foreign Taxes (other than Foreign Taxes imposed on or in respect of any amount
payable by such Approved Borrower hereunder) the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained, so long as no claim for such Foreign Taxes is
made on the Administrative Agent or any Lender.
(b) Indemnification by Approved Borrowers. Each Approved
Borrower organized under a Foreign Jurisdiction shall indemnify the
Administrative Agent and each Lender against, and reimburse the Administrative
Agent and each Lender on demand for, any Foreign Taxes applicable to it and any
loss, liability, claim or expense, including interest, penalties and legal fees,
that the Administrative Agent or such Lender may incur at any time arising out
of or in connection with any failure of such Approved Borrower to make any
payment of Foreign Taxes when due.
(c) Gross-Up for Foreign Taxes. In the event that any Approved
Borrower organized under a Foreign Jurisdiction is required by applicable law,
decree or regulation to deduct or withhold Foreign Taxes from any amounts
payable on, under or in respect of this Agreement or the Loans made to it, such
Approved Borrower shall (to the fullest extent permitted by applicable law)
promptly pay the Person entitled to such amount such additional amounts as may
be required, after the deduction or withholding of Foreign Taxes, to enable such
Person to receive from such Approved Borrower on the due date thereof, an amount
equal to the full amount stated to be payable to such Person under this
Agreement. Each Lender shall provide to such Approved Borrower such forms or
certificates as such Approved Borrower may reasonably request to establish such
Lender's entitlement to an exemption from or reduction of Foreign Taxes, but no
Lender shall be required to provide any form or certificate if it determines in
its discretion that the provision of such form or certificate could adversely
affect it or it is not legally entitled to provide such form or certificate.
(d) Evidence of Payment of Foreign Taxes. Each Approved
Borrower organized under a Foreign Jurisdiction shall furnish to the
Administrative Agent, upon the request of any Lender (through the Administrative
Agent), together with sufficient certified copies for distribution to each
Lender requesting the same (identifying the Lenders that have so requested),
original official tax receipts (or certified copies thereof) in respect of each
payment of Foreign Taxes required under this Section made by such Approved
Borrower or such other information, documents and receipts that the
Administrative Agent or such Lender may reasonably require to establish to its
satisfaction that full and timely payment has been made of all Foreign Taxes
required to be paid under this Section within 30 days after the date such
payment is made.
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.
(a) Payments by the Borrowers. Each Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest or
fees, or under Section 2.13, 2.14, 2.15 or 2.16, or otherwise) prior to 12:00
noon, Local Time, on the date when due, in immediately available funds, without
set-off, counterclaim or other deduction. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Administrative Agent's Account, except that payments
pursuant to Sections 2.13, 2.14, 2.15, 2.16 and 9.03 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder (including facility fees, payments required under Section
2.13, and payments required under Section 2.14 relating to any Loan denominated
in Dollars, but not including principal of, and interest on, any Loan
denominated in any Foreign Currency or payments relating to any such Loan
required under Section 2.14, which are payable in such Foreign Currency) shall
be made in Dollars. Notwithstanding the foregoing, if any Borrower shall fail to
pay any principal of any Loan when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), the unpaid portion of such
Loan shall, if such Loan is not denominated in Dollars, automatically be
redenominated in Dollars on the due date thereof (or, if such due date is a day
other than the last day of the Interest Period therefor, on the last day of such
Interest Period) in an amount equal to the Dollar Equivalent thereof on the date
of such redenomination and such principal shall be payable on demand; and if any
Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall automatically be redenominated in Dollars on the
due date therefor (or, if such due date is a day other than the last day of the
Interest Period therefor, on the last day of such Interest Period) in an amount
equal to the Dollar Equivalent thereof on the date of such redenomination and
such interest shall be payable on demand.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, interest and fees then due hereunder, such
funds shall be applied (i) first, to pay interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, to pay principal
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Syndicated Borrowing shall be made from the Lenders,
each payment of a facility fee under Section 2.10 shall be made for account of
the Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.07 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments (or,
in the case of payment of facility fees, pro rata according to the amounts of
their respective Revolving Credit Exposures); (ii) each Syndicated Borrowing
shall be allocated pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of the making of Syndicated Loans) or their
respective Loans (in the case of conversions and continuations of Loans); (iii)
each payment or prepayment of principal of Syndicated Loans by any Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Syndicated Loans of such Borrower
held by them; and (iv) each payment of interest on Syndicated Loans by any
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans of such Borrower then due and payable to
the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans resulting
in such Lender receiving payment of a greater proportion of the aggregate amount
of its Syndicated Loans and accrued interest thereon then due than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Syndicated Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Syndicated Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by a Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Company or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against such Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from a Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders hereunder
that the respective Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders the amount due. In such event, if such Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(b) or 2.17(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.13, or if any Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.15 or 2.16, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.13, 2.15 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.13 or 2.14, or if any Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.15 or 2.16, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Company may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement (other than any outstanding
Competitive Loans held by it) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) the Company shall have received the prior written consent of
the Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder (including any
amounts payable under Section 2.14 as a result of such assignment), from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.13 or payments required to be made pursuant to Section 2.15 or 2.16, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
SECTION 2.19. Extension of Commitment Termination Date.
(a) Requests for Extension. The Company may, by notice to the
Administrative Agent (which shall promptly notify the Lenders) not
earlier than 60 days and not later than 45 days prior to the Commitment
Termination Date then in effect hereunder (the "Existing Commitment
Termination Date"), request that the Lenders extend the Commitment
Termination Date for an additional 364 days from the Existing
Commitment Termination Date.
(b) Lender Elections to Extend. Each Lender, acting in its
sole and individual discretion, shall, by notice to the Administrative
Agent given not earlier than 30 days prior to the Existing Commitment
Termination Date and not later than the date (the "Notice Date") that
is 20 days prior to the Existing Commitment Termination Date, advise
the Administrative Agent whether or not such Lender agrees to such
extension, and each Lender that determines not to so extend its
Commitment Termination Date (a "Non-Extending Lender") shall notify the
Administrative Agent (which shall notify the other Lenders) of such
fact promptly after such determination (but in any event no later than
the Notice Date) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be
a Non-Extending Lender. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.
(c) Notification by Administrative Agent. The Administrative
Agent shall notify the Borrower of each Lender's determination under
this Section 2.19 no later than the date 20 days prior to the Existing
Commitment Termination Date (or, if such date is not a Business Day, on
the next preceding Business Day).
(d) Additional Commitment Lenders. The Company shall have the
right on or before the Existing Commitment Termination Date to replace
each Non-Extending Lender with, and add as "Lenders" under this
Agreement in place thereof, one or more financial institutions (each,
an "Additional Commitment Lender") with the approval of the
Administrative Agent (which approval shall not be unreasonably
withheld), each of which Additional Commitment Lenders shall have
entered into an agreement in form and substance satisfactory to the
Company and the Administrative Agent pursuant to which such Additional
Commitment Lender shall, effective as of the Existing Commitment
Termination Date, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender's Commitment hereunder on such date).
(e) Minimum Extension Requirement. If (and only if) the total
of the Commitments of the Lenders that have agreed so to extend their
Commitment Termination Date and the additional Commitments of the
Additional Commitment Lenders shall be more than 65% of the aggregate
amount of the Commitments in effect immediately prior to the Existing
Commitment Termination Date, then, effective as of the Existing
Commitment Termination Date, the Commitment Termination Date shall be
extended to the date falling 364 days after the Existing Commitment
Termination Date (except that, if such date is not a Business Day, such
Commitment Date as so extended shall be the next preceding Business
Day) and each Additional Commitment Lender shall thereupon become a
"Lender" for all purposes of this Agreement.
(f) Conditions to Effectiveness of Extensions. Notwithstanding
the foregoing, the extension of the Commitment Termination Date
pursuant to this Section 2.19 shall not be effective with respect to
any Lender unless:
(x) no Default or Event of Default shall have occurred and be
continuing on the date of such extension and after giving effect
thereto;
(y) the representations and warranties of the Borrowers set
forth in this Agreement are true and complete in all material respects
on and as of the date of such extension as if made on and as of such
date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(z) on or before the Existing Commitment Termination Date the
payment required to be made to each Non-Extending Lender pursuant to
paragraph (g) below shall have been made.
(g) Payment of Non-Extending Lenders. On the Existing
Commitment Termination Date, (1) the Commitment of each Non-Extending
Lender shall automatically expire, (2) the Borrowers shall pay in full
the principal of and interest on all of the Loans made by such
Non-Extending Lender to the Borrowers hereunder and (3) the Borrowers
shall pay in full all other amounts owing to such Lender hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each of the Company and the
Approved Borrowers, as applicable, represents and warrants to the Lenders that:
Part A. Representations and Warranties of the Company.
SECTION 3.01. Corporate Existence. Each of the Company and its
Material Subsidiaries: (a) is a corporation duly organized and validly existing
under the laws of the jurisdiction of its incorporation (or, in the case of a
Material Subsidiary that is not a corporation, is a partnership or other entity
duly organized and validly existing under the laws of its jurisdiction of
organization); (b) has all requisite legal power, and has all material
governmental licenses, authorizations, consents and approvals, necessary to own
its assets and carry on its business as now being or as proposed to be
conducted; and (c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify would have a Material Adverse Effect.
SECTION 3.02. Financial Condition. The consolidated balance
sheet of the Company and its Consolidated Subsidiaries as at December 31, 2005
and the related consolidated statements of earnings, cash flow and common
shareholders' equity of the Company and its Consolidated Subsidiaries for the
fiscal year ended on said date, with the opinion thereon of Deloitte & Touche
LLP, heretofore furnished to each of the Lenders, are complete and correct and
fairly present the consolidated financial condition of the Company and its
Consolidated Subsidiaries as at said date and the consolidated results of their
operations for the fiscal year, on said date, all in accordance with GAAP.
Neither the Company nor any of its Material Subsidiaries had on said dates any
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance
sheets as at said dates. Since December 31, 2005, there has been no event or
condition that could result in a Material Adverse Effect.
SECTION 3.03. Litigation. Except as disclosed to the Lenders
in writing prior to the date of this Agreement, the legal or arbitral
proceedings, and proceedings by or before any Governmental Authority, now
pending or (to the knowledge of the Company) threatened against the Company
and/or any of its Material Subsidiaries will not, in the opinion of the General
Counsel of the Company, result in imposition of liability or assessment against
(including seizure of) property that would result in a Material Adverse Effect.
SECTION 3.04. No Breach. None of the execution and delivery of
this Agreement, the consummation of the transactions herein contemplated and
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of the
Company, or any applicable law or regulation, or any order, writ, injunction or
decree of any Governmental Authority, or any agreement or instrument to which
the Company or any of its Material Subsidiaries is a party or by which any of
them is bound or to which any of them is subject, or constitute a default under
any such agreement or instrument.
SECTION 3.05. Corporate Action of the Company. The Company has
all necessary corporate power and authority to execute, deliver and perform its
obligations under this Agreement; the execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary corporate
action on its part; and this Agreement has been duly and validly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as enforcement
may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally.
SECTION 3.06. Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any Governmental Authority
are necessary for the execution, delivery or performance by the Company of this
Agreement or for the validity or enforceability thereof.
SECTION 3.07. Use of Loans. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock and no part of the proceeds of
any Loan hereunder will be used to buy or carry, or to extend credit to others
to buy or carry, any Margin Stock.
SECTION 3.08. ERISA. The Company and the ERISA Affiliates have
fulfilled their respective obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions in the ordinary course of
business).
SECTION 3.09. Taxes. United States Federal income tax returns
of the Company have been examined and closed through the fiscal year of the
Company ended December 31, 1996. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
Subsidiaries except for those being contested in good faith and for which
adequate reserves have been established in accordance with GAAP. The charges,
accruals and reserves on the books of the Company and its Material Subsidiaries
in respect of taxes and other governmental charges are, in the opinion of the
Company, adequate. If the Company is a member of an affiliated group of
corporations filing consolidated returns for United States Federal income tax
purposes, it is the "common parent" of such group.
SECTION 3.10. Investment Company Act. None of the Company or
any of the Approved Borrowers is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 3.11. Credit Agreements. Schedule II is a complete and
correct list, as of the date of this Agreement, of each credit agreement, loan
agreement, indenture, purchase agreement, guarantee or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, the
Company or any of its Material Subsidiaries the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $150,000,000 and the
aggregate principal or face amount outstanding or which may become outstanding
under each such arrangement is correctly described in Schedule II.
SECTION 3.12. Hazardous Materials and Environmental Matters.
(a) Licenses and Permits, Etc. The Company and each of its
Material Subsidiaries have obtained all permits, licenses and other
authorizations required under all Environmental Laws, except to the extent
failure to have any such permit, license or authorization could not in the
aggregate reduce by more than 25% the annual tonnage capacity of the paper
processing operations of the Company and its Consolidated Subsidiaries. The
Company and each of its Material Subsidiaries are in compliance with the terms
and conditions of all such permits, licenses and authorizations, and are also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply could
not in the aggregate reduce by more than 25% the annual tonnage capacity of the
paper processing operations of the Company and its Consolidated Subsidiaries.
(b) Compliance Review. In the ordinary course of its business,
the Company conducts an ongoing review of the effect of Environmental Laws on
the business, operations and properties of the Company and its Subsidiaries, in
the course of which it identifies and evaluates associated liabilities and costs
(including any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or hazardous substances, and any
actual or potential liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, the Company has
reasonably concluded that such associated liabilities and costs, including the
costs of compliance with Environmental Laws, are unlikely to have a Material
Adverse Effect.
SECTION 3.13. Full Disclosure. The Company has heretofore
furnished to each of the Lenders a true copy of the Company's annual report to
shareholders for 2005 setting forth consolidated audited financial statements
for the year ended December 31, 2005, as filed with the Securities and Exchange
Commission. Except as disclosed in writing to the Lenders, the annual, quarterly
and other periodic reports most recently delivered to the Lenders pursuant to
this Section or Section 3.02 do not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein
not misleading.
Part B. Representations and Warranties of the Approved
Borrowers. Each Approved Borrower represents and warrants to the Lenders that:
SECTION 3.14. Existence of Approved Borrowers. It (a) is duly
organized and validly existing under the laws of the jurisdiction of its
formation; (b) has all requisite power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and where failure so
to qualify would have a Material Adverse Effect.
SECTION 3.15. No Breach. None of the execution and delivery of
its Designation Letter, the consummation of the transactions herein contemplated
and compliance with the terms and provisions hereof will conflict with or result
in a breach of, or require any consent under, the charter or by-laws of such
Approved Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any Governmental Authority, or any agreement or
instrument to which such Approved Borrower or any of its Subsidiaries is a party
or by which any of them is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument.
SECTION 3.16. Corporate Action. Such Approved Borrower has all
necessary power and authority to execute, deliver and perform its obligations
under its Designation Letter and to perform its obligations hereunder; the
execution and delivery by such Approved Borrower of its Designation Letter and
the performance by such Approved Borrower hereunder and thereunder have been
duly authorized by all necessary action on its part; and its Designation Letter
when executed and delivered by such Approved Borrower, will constitute, the
legal, valid and binding obligation of such Approved Borrower, enforceable in
accordance with its terms.
SECTION 3.17. Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any Governmental Authority
are necessary for the execution, delivery or performance by such Approved
Borrower of its Designation Letter or for the validity or enforceability
thereof.
SECTION 3.18. Taxes on Payments of Approved Borrowers. Except
as disclosed to the Lenders in writing prior to the delivery of such Approved
Borrower's Designation Letter, there is no income, stamp or other tax of any
country, or of any taxing authority thereof or therein, imposed by or in the
nature of withholding or otherwise, which is imposed on any payment to be made
by such Approved Borrower pursuant hereto, or is imposed on or by virtue of the
execution, delivery or enforcement of its Designation Letter.
ARTICLE IV
GUARANTEE
SECTION 4.01. Guarantee. The Guarantor hereby guarantees to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to any Approved Borrower and all other amounts from time to time
owing to the Lenders or the Administrative Agent by any Approved Borrower under
this Agreement pursuant to its Designation Letter, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). The Guarantor hereby further agrees that
if any Approved Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Guarantor will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal. This is a guarantee of payment and not
of collection.
SECTION 4.02. Obligations Unconditional. The obligations of
the Guarantor under Section 4.01 are absolute and unconditional irrespective of
the value, genuineness, validity, regularity, legality or enforceability of the
obligations of any Approved Borrower under this Agreement or any other agreement
or instrument referred to herein or therein (including any Designation Letter),
or any substitution, release or exchange of any other guarantee of or security
for any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor (including any immunity, sovereign or otherwise, to which any Approved
Borrower may be entitled), it being the intent of this Section that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not
affect the liability of the Guarantor hereunder:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or any other agreement or instrument referred to herein
or therein shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented, or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Approved Borrower under this Agreement or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 4.03. Reinstatement. The obligations of the Guarantor
under this Article IV shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of any Approved Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Guarantor
agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration.
SECTION 4.04. Subrogation. The Guarantor hereby waives all
rights of subrogation or contribution, whether arising by operation of law
(including any such right arising under the Bankruptcy Code, as now or hereafter
in effect) or otherwise, by reason of any payment by it pursuant to the
provisions of this Article IV and further agrees that for the benefit of each of
its creditors (including each Lender and the Administrative Agent) that any such
payment by it of the Guaranteed Obligations of any Approved Borrower shall
constitute a contribution of capital by the Guarantor to such Approved Borrower
or, if evidenced by an instrument in form and substance (and containing terms of
subordination) satisfactory to the Required Lenders, indebtedness subordinated
in right of payment to the principal of and interest (including post-petition
interest) on the Loans owing by such Approved Borrower.
SECTION 4.05. Remedies. The Guarantor agrees that, as between
the Guarantor and the Lenders, the obligations of any Approved Borrower under
this Agreement may be declared to be forthwith due and payable as provided in
Article VII (and shall be deemed to have become automatically due and payable in
the circumstances provided in Article VII) for purposes of Section 4.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Approved Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by such Approved Borrower)
shall forthwith become due and payable by the Guarantor for purposes of said
Section 4.01.
SECTION 4.06. Continuing Guarantee. The guarantee in this
Article IV is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which the
Administrative Agent shall have received each of the following documents, each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall
have been waived in accordance with Section 9.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Company. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Xxxxx Xxxxx, Senior Counsel - Treasury for
the Company substantially in the form of Exhibit B-1 (and the Company
hereby instructs such counsel to deliver such opinion to the Lenders
and the Administrative Agent).
(c) Opinion of Special New York Counsel to JPMCB. An opinion,
dated the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special New York counsel to JPMCB, substantially in the form of Exhibit
C (and JPMCB hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Company, the
authorization of the borrowings hereunder by the Company, and its
Guarantee of obligations of the Approved Borrowers, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by the President, a Vice President, Treasurer or a
senior financial officer of the Company, confirming compliance with the
conditions set forth in the lettered clauses of the first sentence of
Section 5.03.
(f) Termination of 2004 Credit Agreement. Evidence that the
"Commitments" under and as defined in the 2004 Credit Agreement shall
have been terminated and the principal of and interest on all Loans and
all other amounts outstanding under the 2004 Credit Agreement shall
have been paid in full.
(g) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to JPMCB
may reasonably request.
The effectiveness of the obligations of the Lenders to make
Loans hereunder shall also be subject to the conditions precedent that:
(i) No Material Adverse Change. Since December 31, 2005, there
has been no material adverse change in the consolidated financial
condition, operations, business or prospects taken as a whole of the
Company and its Subsidiaries from that set forth in the respective
financial statements of the Company as at said date (and the
Administrative Agent shall have received a certificate to such effect
from a senior financial officer of the Company).
(ii) Fees. The Company shall have paid such fees as it shall
have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB,
in connection with the negotiation, preparation, execution and delivery
of this Agreement and the Loans hereunder (to the extent that
statements for such fees and expenses have been delivered to the
Company).
The Administrative Agent shall notify the Company and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New
York City time, on April 28, 2006 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02. Initial Loan to any Approved Borrower. The
obligations of the Lenders to make Loans hereunder to any Approved Borrower
shall not become effective until the date on which the Administrative Agent
shall have received each of the following documents, each of which shall be
satisfactory to the Administrative Agent (and to the extent specified below, to
each Lender) in form and substance (or such condition shall have been waived in
accordance with Section 9.02):
(a) Designation Letter. A Designation Letter, duly executed by
such Approved Borrower and the Company.
(b) Opinion of Counsel to Approved Borrower. A favorable
written opinion (addressed to the Administrative Agent and the Lenders)
of counsel for such Approved Borrower satisfactory to the
Administrative Agent substantially in the form of Exhibit B-2, with
such changes therein as the Administrative Agent may request to address
matters of foreign law.
(c) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of such Approved
Borrower, the authorization of the borrowings hereunder by such
Approved Borrower and of the guarantee of the obligations of the
Approved Borrower hereunder by the Company, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) Financial Statements. The financial statements of such
Approved Borrower required pursuant to the fourth paragraph of such
Approved Borrower's Designation Letter.
(e) Other Documents. Such other documents as the
Administrative Agent or any Lender or special New York counsel to JPMCB
may reasonably request.
SECTION 5.03. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a) the representations and warranties of the Company in Part
A of Article III (other than the last sentence of Section 3.02) shall
be true and correct on and as of the date of such Borrowing;
(b) in the case of any Borrowing by an Approved Borrower, the
representations and warranties of such Approved Borrower in Part B of
Article III shall be true and correct on and as of the date of such
Borrowing; and
(c) at the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company and the respective Borrower on the date thereof as to the matters
specified in the preceding sentence.
ARTICLE VI
COVENANTS OF THE COMPANY
The Company agrees that, so long as any of the Commitments are
in effect and until payment in full of all Loans hereunder, all interest thereon
and all other amounts payable by any Obligor hereunder:
Part A. Affirmative Covenants.
SECTION 6.01. Financial Statements. The Company shall deliver
to the Administrative Agent on behalf of the Lenders (and upon receipt thereof
the Administrative Agent shall promptly deliver to the Lenders):
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Company, consolidated statements of earnings and cash flow of the
Company and its Consolidated Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of
such period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated figures for the corresponding period in the
preceding fiscal year, accompanied by a certificate of a senior
financial officer of the Company which certificate shall state that
said financial statements fairly present the consolidated financial
condition, results of operations and cash flows of the Company and its
Consolidated Subsidiaries on a consolidated basis as of and for the
periods presented in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, consolidated statements of
earnings, cash flow and common shareholders' equity of the Company and
its Consolidated Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting forth in
each case in comparative form the corresponding consolidated figures
for the preceding fiscal year, and accompanied by an unqualified
opinion thereon of Deloitte & Touche LLP or any other independent
certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly
present the consolidated financial condition and results of operations
of the Company and its Consolidated Subsidiaries as at the end of, and
for, such fiscal year;
(c) promptly upon their becoming available, notices of the
filing of all regular periodic reports which the Company shall have
filed with the Securities and Exchange Commission (or any Governmental
Authority substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and
proxy statements so mailed, provided that, where any such mailed copies
shall also have been filed with the Securities and Exchange Commission,
the requirements of this paragraph shall be satisfied by the Company
delivering a notice of such filing with such Commission;
(e) promptly after the Company knows or has reason to know
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Company
has taken and proposes to take with respect thereto;
(f) as soon as available and in any event within 100 days
after the end of each fiscal year of each Approved Borrower, statements
of earnings, cash flow and common shareholders' equity (if any) of such
Approved Borrower for such year and the related balance sheet as at the
end of such year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, accompanied by a
certificate of a senior financial officer of the Company, which
certificate shall state that said financial statements fairly present
the financial condition and results of operations of such Approved
Borrower in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal year; and
(g) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of its
Material Subsidiaries (including any Plan or Multiemployer Plan and any
reports or other information required to be filed under ERISA) as the
Administrative Agent may reasonably request (on its own behalf or on
behalf of any Lender).
The Company will furnish to the Administrative Agent, at the time it
furnishes each set of financial statements pursuant to paragraph (a) or (b)
above, a certificate of a senior financial officer of the Company (i) to the
effect that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail and
describing the action that the Company has taken and proposes to take with
respect thereto) and (ii) setting forth in reasonable detail the computations
necessary to determine whether the Company is in compliance with Sections 6.08
and 6.09 as of the end of the respective quarterly fiscal period or fiscal year.
SECTION 6.02. Litigation. The Company will promptly give to
the Administrative Agent (and upon receipt thereof the Administrative Agent
shall promptly give to the Lenders) notice of all legal or arbitral proceedings,
and of all proceedings by or before any governmental or regulatory authority or
agency, and any material development in respect of such legal or other
proceedings, affecting the Company or any of its Material Subsidiaries, except
any proceeding which, if adversely determined, would not have a Material Adverse
Effect.
SECTION 6.03. Corporate Existence, Etc. The Company will, and
will cause each of its Material Subsidiaries to: preserve and maintain its legal
existence and all of its material rights, privileges and franchises (provided
that nothing in this Section shall prohibit any transaction expressly permitted
under Section 6.06); comply in all material respects with the requirements of
all applicable laws, rules, regulations and orders of any Governmental Authority
if failure to comply with such requirements (i) will in the opinion of the
General Counsel of the Company result in imposition of liability or assessment
against (including seizure of) property in an aggregate amount (as to all such
failures to comply) exceeding 10% of Consolidated Net Worth or (ii) would in the
aggregate (as to all such failures to comply) reduce by more than 25% the annual
tonnage capacity of the paper processing operations of the Company and its
Consolidated Subsidiaries; pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained; maintain all of its properties used or useful in
its business in good working order and condition, ordinary wear and tear
excepted; provided, however, that the Company or any Subsidiary of the Company
may discontinue the maintenance of a property if such discontinuance is, in the
opinion of the Company, desirable in the conduct of its business and is not
likely to have a Material Adverse Effect; and upon reasonable advance notice,
permit representatives of any Lender or the Administrative Agent, during normal
business hours, to examine, copy and make extracts from its books and records,
to inspect its properties, and to discuss its business and affairs with its
officers, all to the extent reasonably requested by such Lender or the
Administrative Agent.
SECTION 6.04. Insurance. The Company will maintain, and will
cause each of its Subsidiaries to maintain, insurance underwritten by
financially sound and reputable insurers, or self insurance (in accordance with
normal industry practice) in such amounts and against such risks as ordinarily
is carried or maintained by owners of like businesses and properties in similar
circumstances.
SECTION 6.05. Use of Proceeds. The Company will, and will
cause each Approved Borrower to, use the proceeds of the Loans made to it
hereunder solely for its general corporate purposes (in compliance with all
applicable legal and regulatory requirements), including acquisition financing
and commercial paper liquidity; provided that neither the Administrative Agent
nor any Lender shall have any responsibility as to the use of any of such
proceeds.
Part B. Negative Covenants.
SECTION 6.06. Prohibition of Fundamental Changes. The Company
will not, nor will it permit any of its Material Subsidiaries to, enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution). The Company will
not, and will not permit any of its Material Subsidiaries to, convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or a substantial part of its business or assets, whether now
owned or hereafter acquired (excluding any inventory or other assets sold or
disposed of in the ordinary course of business). Notwithstanding the foregoing
provisions of this Section:
(a) any Subsidiary of the Company may be merged or
consolidated with or into: (i) the Company if the Company shall be the
continuing or surviving corporation or (ii) any other Subsidiary;
provided that if any such transaction shall be between a Subsidiary and
a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the
continuing or surviving corporation;
(b) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Company or a Wholly Owned Subsidiary
of the Company;
(c) the Company or any Subsidiary of the Company may merge or
consolidate with any other Person if (i) in the case of a merger or
consolidation of the Company, any successor entity (if other than
Company) assumes, in a manner satisfactory to the Administrative Agent,
all of the Company's obligations under this Agreement (and, in that
connection, delivers to the Administrative Agent such evidence of
corporate authorization and opinions of counsel as are consistent with
those delivered by the Company pursuant to Section 5.01 on the
Effective Date and are reasonably requested by the Administrative
Agent) and, in the case of a merger or consolidation of any Subsidiary,
the surviving corporation is a Wholly Owned Subsidiary of the Company
and (ii) after giving effect thereto no Default would exist hereunder;
and
(d) in addition to the dispositions permitted pursuant to
clauses (a) through (c) of this Section, the Company or any Subsidiary
of the Company may sell or otherwise dispose of:
(i) all Excluded Assets (including by merger or
consolidation); and
(ii) Non-Excluded Assets (including by merger or
consolidation) if, after giving effect to any such sale or
disposition of Non-Excluded Assets, the book value (determined
at the time of sale or disposition) of such Non-Excluded
Assets, together with the aggregate book value of all other
Non-Excluded Assets so sold or disposed of since December 31,
2005, does not exceed 20% of Total Assets (excluding the
Excluded Assets) at December 31, 2005.
SECTION 6.07. Limitation on Liens. The Company will not, nor
will it permit any of its Material Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except:
(a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or which are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the
Company or any of its Material Subsidiaries, as the case may be, in
accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which
do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Company or any of its Material Subsidiaries;
(f) Liens on assets of Persons that become Subsidiaries of the
Company after the date of this Agreement, provided that such Liens are
in existence at the time the respective Persons become Subsidiaries of
the Company and were not created in anticipation thereof;
(g) Liens upon real and/or tangible personal property acquired
after the date hereof (by purchase, construction or otherwise) by the
Company or any of its Material Subsidiaries, each of which Liens either
(A) existed on such property before the time of its acquisition and was
not created in anticipation thereof, or (B) was created solely for the
purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of
the respective property; provided in the case of clause (B) that such
Lien attaches to such asset within 270 days after the acquisition or
completion of construction and commencement of full operations thereof;
provided further that no such Lien shall extend to or cover any
property of the Company or such Material Subsidiary other than the
respective property so acquired and improvements thereon; and provided
further, that the principal amount of Indebtedness secured by any such
Lien shall at no time exceed 95% of the fair market value (as
determined in good faith by a senior financial officer of the Company)
of the respective property at the time it was acquired (by purchase,
construction or otherwise);
(h) Liens on assets consisting of a capital project and rights
related thereto ("Project Assets") securing Indebtedness incurred to
finance the acquisition, construction or development of such Project
Assets; provided that (x) such Indebtedness is non-recourse to any
other assets; (y) the aggregate principal amount of Indebtedness
secured by Liens permitted by this paragraph (h) may at no time exceed
$200,000,000 and (z) such Liens attach to such Project Assets within
two years after the initial acquisition or completion of construction
or development of such Project Assets;
(i) Liens upon real and/or personal property of the Company or
any Material Subsidiary of the Company in favor of the United States of
America or any State thereof, any department, agency or instrumentality
or political subdivision of the United States or any State thereof, or
any bonding authority (including any authority established for the
issuance of industrial revenue bonds or similar instruments) to secure
partial, progress, or advance or other payments pursuant to any
contract or statute or to secure Indebtedness (including, but not
limited to, industrial revenue bonds and similar instruments) incurred
for the purpose of refinancing all or any part of the purchase price or
cost of constructing or improving such property;
(j) Liens on (i) accounts receivable and related contract
rights, letters of credit, accounts and similar assets arising in
connection with any securitization transaction, and (ii) promissory
notes, regulatory and any other related assets in connection with any
financing transaction, in each case whether denominated as sales or
borrowings;
(k) Liens granted to provide security in substitution for
collateral presently securing existing Indebtedness, so long as such
substitute collateral does not cover any property other than the
property securing such existing Indebtedness;
(l) Liens securing judgments up to $200,000,000 for the
payment of money in an amount not resulting (whether immediately or
with the passage of time) in an Event of Default under subsection (h)
of Article VII;
(m) Liens in existence on the date hereof and listed on
Schedule V;
(n) additional Liens upon property, assets or revenues created
after the date hereof, provided that the aggregate outstanding
Indebtedness secured thereby and incurred on and after the date hereof
shall not at any time exceed 10% of Tangible Assets; and
(o) any extension, renewal or replacement of the foregoing,
provided, however, that the Liens permitted hereunder shall not be
spread to cover any additional Indebtedness or property (other than a
substitution of like property);
and provided further that the sale, mortgage or other transfer of timber in
connection with an arrangement under which the Company or any of its
Subsidiaries is obligated to cut such timber (or any portion thereof) in order
to provide the transferee with a specified amount of money (however determined)
shall not be deemed to create Indebtedness secured by a Lien hereunder.
SECTION 6.08. Total Debt to Total Capital Ratio. The Company
will not at any time permit the ratio of Total Debt to Total Capital to exceed
0.60 to 1.
SECTION 6.09. Minimum Consolidated Net Worth. The Company will
not at any time permit Consolidated Net Worth to be less than $9,000,000,000.
ARTICLE VII
EVENTS OF DEFAULT
If one or more of the following events (herein called "Events
of Default") shall occur and be continuing:
(a) Any Borrower shall default in the payment when due of any
principal of any Loan; or any Borrower shall default in the payment
when due of any interest on any Loan or any other amount payable by it
hereunder and such default shall continue unremedied for five or more
Business Days; or
(b) Any event specified in any note, agreement, indenture or
other document evidencing or relating to any Indebtedness (other than
(i) Indebtedness hereunder, (ii) Project Indebtedness, or (iii)
Indebtedness owed by any Material Subsidiary to the Company) of the
Company or any of its Material Subsidiaries aggregating $200,000,000 or
more shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, such Indebtedness to become due, or
to be prepaid in full (whether by redemption, purchase or otherwise),
prior to its stated maturity; or
(c) Any representation, warranty or certification made or
deemed made herein or in any Designation Letter (or in any modification
or supplement hereto or thereto) by any Obligor, or any certificate
furnished to any Lender or the Administrative Agent pursuant to the
provisions hereof or of any Designation Letter (or thereof), shall
prove to have been false or misleading in any material respect as of
the time made or furnished; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 6.06, 6.07, 6.08 or 6.09; or any
Obligor shall default in the performance of any of its other
obligations in this Agreement and such default shall continue
unremedied for a period of thirty days after notice thereof to such
Obligor (through notification to the Company) by the Administrative
Agent or any Lender (through the Administrative Agent); or
(e) The Company or any of its Material Subsidiaries shall
admit in writing its inability to, or be generally unable to, pay its
debts as such debts become due; or
(f) The Company or any of its Material Subsidiaries shall (i)
apply for or consent to the appointment of, or the taking of possession
by, a receiver, custodian, trustee or liquidator of itself or of all or
a substantial part of its property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Company or any of its Material
Subsidiaries, in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Company or
such Material Subsidiary or of all or any substantial part of its
assets, or (iii) similar relief in respect of the Company or such
Material Subsidiary under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and
such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 90 or more
days; or an order for relief against the Company or such Material
Subsidiary shall be entered in an involuntary case under the Bankruptcy
Code; or
(h) A final judgment or judgments for the payment of money in
excess of $200,000,000 in the aggregate shall be rendered by a court or
courts against the Company and/or any of its Material Subsidiaries and
the same shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof and the Company or the
relevant Material Subsidiary shall not, within said period of 30 days,
or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be
stayed during such appeal; or
(i) An event or condition shall occur or exist with respect to
any Plan or Multiemployer Plan and, as a result of such event or
condition, together with all other such events or conditions, the
Company or any ERISA Affiliate shall be reasonably likely in the
opinion of the General Counsel of the Company to incur a liability to a
Plan, a Multiemployer Plan or PBGC (or any combination of the
foregoing) which is in excess of 10% of Consolidated Net Worth; or
(j) Any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended, it
being agreed that an employee of the Company or any Consolidated
Subsidiary for whom shares are held under an employee stock ownership,
employee retirement, employee savings or similar plan and whose shares
are voted in accordance with the instructions of such employee shall
not be a member of a group of persons within the meaning of said
Section 13 or 14 solely because such employee's shares are held by a
trustee under said plan) shall acquire, directly or indirectly,
beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the SEC under said Act, as amended) of 20% or more of the outstanding
shares of stock of the Company having by the terms thereof ordinary
voting power to elect (whether immediately or ultimately) a majority of
the board of directors of the Company (irrespective of whether or not
at the time stock of any other class or classes of stock of the Company
shall have or might have voting power by reason of the happening of any
contingency); or
(k) During any period of 24 consecutive calendar months, a
majority of the Board of Directors of the Company shall no longer be
composed of individuals (i) who were members of said Board on the first
day of such period or (ii) whose election or nomination to said Board
was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a
majority of said Board;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Article VII with respect to any Obligor, (a) the
Administrative Agent may and, upon request of Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time, shall, by
notice to the Company, cancel the Commitments and they shall thereupon
terminate, and (b) the Administrative Agent may and, upon request of Lenders
holding more than 50% of the aggregate unpaid principal amount of the Loans
(including Competitive Loans) shall, by notice to the Company, declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Obligors hereunder (including any amounts
payable under Section 2.14) to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor; and (2) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Article VII with respect to any
Obligor, the Commitments shall automatically be canceled and the principal
amount then outstanding of, and the accrued interest on, the Loans and all other
amounts payable by the Obligors hereunder (including any amounts payable under
Section 2.14) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Company), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Company. Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Company, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article VIII and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at Office of the Controller,
International Paper Company, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000 (Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000) and
0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000; Telecopy No. (000) 000-0000;
Telephone No. (000) 000-0000); with a copy to the Office of the General
Counsel, International Paper, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, (Telecopy No. (000) 000-0000; Telephone No. (203)
541-8526); with a copy to the Office of the General Counsel, 0000
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000; Telecopy No. (000) 000-0000;
Telephone No. (000) 000-0000)
(b) if to the Administrative Agent, to JPMCB, Loan and Agency
Services - Texas, 0000 Xxxxxx 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xxxxx X. Xxxxxx (Telecopy No. (000) 000-0000 and Telephone
No. (000) 000-0000) and Xxxxxxx X. Xxxxx (Telecopy No. (000) 000-0000
and Telephone No. (000) 000-0000); provided that, in the case of any
notice that relates to a Loan denominated in a Foreign Currency, a copy
thereof shall be delivered to X.X. Xxxxxx Europe Limited, 000 Xxxxxx
Xxxx, Xxxxxx. XX0X-0XX, Attention: Xxxxx Xxxxx (Telecopy No.
000-00-000-000-0000/2085; Telephone No. 000-00-000-000-0000); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Company and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt. Each Approved Borrower hereby agrees that any
notice or other communication provided for herein to be given by or to such
Approved Borrower may be given by or to the Company on behalf of such Approved
Borrower in the manner specified above and neither the Administrative Agent nor
any Lender shall be required to accept as effective any notice or other
communication purporting to have been issued directly by an Approved Borrower
(and not by the Company on behalf of such Approved Borrower).
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise
of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any
departure by any Obligor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of
such Default at the time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by each Obligor and the
Required Lenders or by each Obligor and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement
shall
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby,
(iv) alter the manner in which payments or prepayments of
principal, interest or other amounts hereunder, or reductions of
commitments, shall be applied as among the Lenders or Types or Classes
of Loans, without the written consent of each Lender,
(v) change any of the provisions of this Section or the
percentage in the definition of the term "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder or release the Guarantor's
obligations in respect of any Approved Borrower, without the written
consent of each Lender, or
(vi) require any Lender to make a Syndicated Loan if the
amount of such Syndicated Loan would exceed such Lender's ratable share
(determined in accordance with the respective Commitments of the
Lenders) of the Syndicated Loans being concurrently requested to be
made by the other Lenders, without the written consent of such Lender;
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent
and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and
(ii) all out-of-pocket expenses incurred by the Administrative Agent or
any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, or any Lender, in connection with
the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof.
(b) Indemnification by the Company. The Company shall
indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses,
including the fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery
of this Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations
hereunder or the consummation of the transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of hazardous materials on or from any
property owned or operated by the Company or any of its Subsidiaries,
or any environmental liability related in any way to the Company or any
of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related
expenses have resulted from the gross negligence or willful misconduct
of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Company
fails to pay any amount required to be paid by it to the Administrative
Agent under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, no Obligor shall assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated hereby, any Loan or the use of
the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) Successors Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except
that (i) no Obligor may assign or otherwise transfer any of its rights
or obligations hereunder without the prior consent of each Lender (and
any attempted assignment or transfer by any Obligor without such
consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth
in paragraph (b)(ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it) with the prior written consent of:
(A) the Company (such consent not to be unreasonably
withheld), provided that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has
occurred and is continuing, any other assignee; and
(B) the Administrative Agent (such consent not to be
unreasonably withheld).
(ii) Certain Conditions to Assignments. Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender
or an Affiliate (or Approved Fund) of a Lender or an
assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000,
unless each of the Company and the Administrative Agent
otherwise consent, provided that no such consent of the
Company shall be required if an Event of Default has occurred
and is continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, provided
that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of
Commitments or Loans,
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of
$3,500, and
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) of this Section, from
and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement in addition
to any rights and obligations theretofore held by it as a Lender, and
the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this paragraph (b) shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register. The Administrative Agent, acting
for this purpose as an agent of the Obligors, shall maintain at one of
its offices in The City of New York a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Obligors, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Obligors and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon
its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b)(ii)(C) of this Section and any written consent to such
assignment required by paragraph (b)(i) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) Participations.
(i) Participations Generally. Any Lender may, without the
consent of the Company or the Administrative Agent sell participations
to one or more banks or other entities (a "Participant") in all or a
portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and
(C) the Obligors, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section
9.02(b), that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Company agrees that each Participant shall be
entitled to the benefits of Sections 2.13, 2.14, 2.15 and 2.16 to the
same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(ii) Limitations on Rights of Participants. A Participant
shall not be entitled to receive any greater payment under Section
2.13, 2.15 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with
the Company's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.15 unless the Company is notified of the
participation sold to such Participant and such Participant agrees, for
the benefit of the Obligors, to comply with Section 2.15(e) as though
it were a Lender.
(d) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by any Obligor herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, 2.16 and
9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender 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
to or for the credit or the account of any Obligor against any of and all the
obligations of such Obligor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement and each Designation Letter
shall be construed in accordance with and governed by the law of the State of
New York.
(b) Submission to Jurisdiction. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, 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 such New York State or, to the extent
permitted by law, in such Federal court. 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 the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties in
the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which 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 in
any court referred to in paragraph (b) of this Section. 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.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 9.01 (and for such purpose, each Approved Borrower hereby irrevocably
appoints the Company as its authorized agent to accept such service of process
in New York with respect to this Agreement and its Designation Letter). Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Treatment of Certain Information;
Confidentiality.
(a) Treatment of Certain Information. Each Obligor
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Company or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and each Obligor hereby
authorizes each Lender to share any information delivered to such Lender by the
Company and its Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (vii) with the consent of the
Company or (viii) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this paragraph or (B) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company. For the purposes of this paragraph, "Information" means
all information received from any Obligor relating to the Company or any of its
Subsidiaries (or their business), other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by such Obligor; provided that, in the case of information
received from an Obligor after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. European Monetary Union.
(a) Definitions. As used herein, the following terms shall
have the following meanings:
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single
or unified European currency (whether known as the euro or otherwise),
being in part the implementation of the third stage of EMU.
"Euros" means the single currency of Participating Member
States of the European Union, which shall be an Agreed Foreign Currency
and a Foreign Currency under this Agreement.
"National Currency" means the Currency, other than the Euro,
of a Participating Member State.
"Participating Member State" means each state so described in
any EMU Legislation.
"Target Operating Day" means any day that is not (i) a
Saturday or Sunday, (ii) Christmas Day or New Year's Day or (iii) any
other day on which the Trans-European Real-time Gross Settlement
Operating System (or any successor settlement system) is not operating
(as determined by the Administrative Agent).
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs
(c) through (h) of this Section shall be effective on the date hereof, provided
that, if and to the extent that any such provision relates to any state (or the
Currency of such state) that is not a Participating Member State on the date
hereof, such provision shall become effective in relation to such state (and
such Currency) at and from the date on which such state becomes a Participating
Member State.
(c) Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the National Currency of a state that is not a Participating Member State on the
date hereof shall, effective upon the date on which such state becomes a
Participating Member State, be redenominated in Euros in accordance with EMU
Legislation; provided that, if and to the extent that any EMU Legislation
provides that an amount denominated either in Euros or in the National Currency
of a Participating Member State and payable within the Participating Member
State by crediting an account of the creditor can be paid by the debtor either
in Euros or in such National Currency, any party to this Agreement shall be
entitled to pay or repay any such amount either in Euros or in such National
Currency.
(d) Payments by the Administrative Agent Generally. With
respect to the payment of any amount denominated in Euros or in a National
Currency, the Administrative Agent shall not be liable to any Borrower or any of
the Lenders in any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this Agreement
to be paid by the Administrative Agent if the Administrative Agent shall have
taken all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in Euros or in such National Currency, as the case may be) to the account
of any Lender in the Principal Financial Center in the Participating Member
State which such Borrower or such Lender, as the case may be, shall have
specified for such purpose. For the purposes of this paragraph, "all relevant
steps" means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system as the
Administrative Agent may from time to time determine for the purpose of clearing
or settling payments in Euros or such National Currency.
(e) Certain Rate Determinations. For the purposes of
determining the date on which the Eurocurrency Rate is determined under this
Agreement for the Interest Period for any Borrowing denominated in Euros (or in
any National Currency), references in this Agreement to Business Days shall be
deemed to be references to Target Operating Days. In addition, if the
Administrative Agent determines, with respect to the Interest Period for any
Borrowing denominated in a National Currency, that there is no IBOR displayed on
the Screen for deposits denominated in such National Currency, the Eurocurrency
Rate for such Interest Period shall be based upon IBOR displayed on the Screen
for the offering of deposits denominated in Euros.
(f) Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the Currency of any state that
becomes a Participating Member State shall be inconsistent with any convention
or practice in the interbank market for the basis of accrual of interest or fees
in respect of the Euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such state becomes a
Participating Member State; provided that, with respect to any Borrowing
denominated in such Currency that is outstanding immediately prior to such date,
such replacement shall take effect at the end of the Interest Period therefor.
(g) Rounding. Without prejudice and in addition to any method
of conversion or rounding prescribed by the EMU Legislation, each reference in
this Agreement to a minimum amount, or to a multiple of a specified amount, in a
National Currency to be paid to or by the Administrative Agent shall be replaced
by a reference to such reasonably comparable and convenient amount, or to a
multiple of such reasonably comparable and convenient amount, in Euros as the
Administrative Agent may from time to time reasonably specify.
(h) Other Consequential Changes. Without prejudice to the
respective liabilities of any Borrower to the Lenders and the Lenders to any
Borrower under or pursuant to this Agreement, except as expressly provided in
this Section, each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time reasonably specify to be necessary or appropriate to reflect the
introduction of or changeover to the Euro in Participating Member States.
SECTION 9.14. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or the
country of the Specified Currency, as the case may be (the "Specified Place"),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Obligors under this Agreement shall not be discharged
or satisfied by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Specified Currency and transfer to the Specified Place under
normal banking procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of exchange
that shall be applied shall be the rate at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of any Borrower in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder (in
this Section called an "Entitled Person") shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to the
extent that on the Business Day following receipt by such Entitled Person of any
sum adjudged to be due hereunder in the Second Currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so
adjudged to be due; and such Obligor hereby, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled Person
against, and to pay such Entitled Person on demand, in the Specified Currency,
the amount (if any) by which the sum originally due to such Entitled Person in
the Specified Currency hereunder exceeds the amount of the Specified Currency so
purchased and transferred.
SECTION 9.15. USA PATRIOT Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with said
Act.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
INTERNATIONAL PAPER COMPANY
By:
--------------------------------
Name:
Title:
LENDERS
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
By:
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A.
By:
--------------------------------
Name:
Title:
BNP PARIBAS
By:
--------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK AG
By:
--------------------------------
Name:
Title:
CREDIT SUISSE, CAYMAN ISLAND BRANCH
By:
--------------------------------
Name:
Title:
XXXXXXX STREET CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
UBS LOAN FINANCE LLC
By:
--------------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
--------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By:
--------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND
By:
--------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
--------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
--------------------------------
Name:
Title:
MIZUHO CORPORATE BANK, LTD.
By:
--------------------------------
Name:
Title:
XXXXXX XXXXXXX BANK
By:
--------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING CORPORATION
By:
--------------------------------
Name:
Title:
SUNTRUST BANK
By:
--------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
FORTIS CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE
By:
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
Title:
MELLON BANK
By:
--------------------------------
Name:
Title:
SANPAOLO-IMI S.P.A.
By:
--------------------------------
Name:
Title:
STATE STREET BANK & TRUST COMPANY
By:
--------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
--------------------------------
Name:
Title:
SCHEDULE I
Commitments
[See definitions of "Commitment" and "Lenders" in Section 1.01]
Name of Lender Commitment
-------------- ----------
JPMorgan Chase Bank N.A. $37,000,000
Citibank, N.A. $37,000,000
BNP Paribas $33,000,000
Bank of America, N.A. $33,000,000
Deutsche Bank AG $33,000,000
UBS Loan Finance LLC $29,000,000
Credit Suisse, Cayman Island Branch $29,000,000
Xxxxxxx Street Commitment Corporation $29,000,000
The Bank of Tokyo-Mitsubishi UFJ, Ltd. $22,000,000
ABN AMRO Bank N.V. $22,000,000
The Royal Bank of Scotland $22,000,000
Barclays Bank PLC $15,000,000
Xxxxxx Xxxxxxx Bank $15,000,000
PNC Bank, National Association $15,000,000
The Bank of New York $15,000,000
Wachovia Bank, National Association $15,000,000
Sumitomo Mitsui Banking Corporation $15,000,000
SunTrust Bank $15,000,000
Mizuho Corporate Bank, Ltd. $15,000,000
Fortis Capital Corporation $12,000,000
Societe Generale $12,000,000
The Bank of Nova Scotia $7,500,000
Mellon Bank $6,250,000
Sanpaolo-IMI S.p.A. $6,250,000
State Street Bank & Trust Company $6,250,000
The Northern Trust Company $3,750,000
------------------
Total | $500,000,000 |
------------------
SCHEDULE II
Material Agreements
List of all debt instruments or facilities of International
Paper Company and its subsidiaries with outstanding balances or commitments of
at least $150,000,000 as of December 31, 2005.
Principal
Issue Amount
----- ------
7 5/8% Note Due 2007 198,000,000
6 7/8% Note Due 2029 155,535,000
6 7/8% Note Due 2023 200,000,000
6 3/4% Note Due 2011 818,536,000
7.35% Debentures Due 2025 174,995,000
6.4% Debentures Due 2026 200,000,000
7.2% Debentures Due 2026 200,000,000
5.85% Note Due 2012 966,640,000
5.3% Note Due 2015 542,467,000
5.5% Note Due 2014 403,030,000
5.25% Note Due 2016 352,895,000
5 3/8% Euro Note Due 2006 296,101,042
3.8% Note Due 2008 294,190,000
4.25% Note Due 2009 425,365,000
4.0% Note Due 2010 433,175,000
Zero Coupon Convertible Note Due 2021 1,184,665,230
Floating Note Due 2010 350,000,000
Principal
Subsidiaries Amount
------------ ------
IP Investments (France) Euro Floating Note Due 2009 592,452,159
IP Investments (Luxembourg) S.a.r.l. Floating Note Due 2010 700,000,000
Bank Facility Outstanding
------------- -----------
$1,250,000,000 R/C Facility Due 2009 -
$1,200,000,000 CP Financing Due 2007 -
SCHEDULE III
Approved Borrowers
[See Definitions in Section 1.01]
None
SCHEDULE IV
MCR COST
--------
Calculation of the Mandatory Cost Rate
The Mandatory Cost Rate is an addition to the interest rate on a sum to
compensate a Lender for the cost of compliance with the requirements of
(a) the Bank of England and/or the Financial Services Authority (the
"FSA") (or any other authority which replaces all or any of its
functions) or (b) the European Central Bank.
The Mandatory Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Administrative Agent. This percentage will be certified
by that Lender in its notice to the Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of Loans made from that Facility Office.
The Mandatory Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be the rate determined by the Administrative
Agent (in consultation with the applicable Lender) (and rounded upward,
if necessary, to the next 1/16th of 1%) as the rate resulting from the
application (as appropriate) of the formula:
for Sterling sums: XL + S(L - D) + F x 0.01
------ -----------------
100 - (X+S)
for other sums: F x 0.01
--------
300
where on the day of application:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which the applicable Lender is
required under the Bank of England Act 1998 (the "Act") to
maintain cash ratio deposits with the Bank of England;
L is the percentage rate per annum at which Sterling deposits
for the relevant period are offered by the applicable Lender
to leading banks in the London Interbank Market at or about
11:00 am (London time) on that day;
F is the rate of charge payable by the applicable Lender to the
FSA under the Fees Regulations expressed in pounds per
(pound)1 million of the Fee Base of the applicable Lender;
S is the level of interest bearing Special Deposits, expressed
as a percentage of Eligible Liabilities, which the applicable
Lender is required to maintain by the Bank of England (or
other United Kingdom governmental authorities or agencies);
and
D is the percentage rate per annum payable by the Bank of
England to the applicable Lender on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall
be counted as zero.)
The Mandatory Cost Rate attributable to a sum for any Interest Period
shall be calculated at or about 11:00 am (London time) on the first day
of such Interest Period for the duration of such Interest Period.
The determination of the Mandatory Cost Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on
the parties hereto.
Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Mandatory Cost Rate. In
particular, but without limitation, each Lender shall supply the
following information in writing on or prior to the date on which it
becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of
its Facility Office; and
(b) any other information that the Administrative Agent may
reasonably require for such purpose.
Each Lender shall promptly notify the Administrative Agent in writing
of any change to the information provided by it pursuant to the
foregoing paragraph.
If there is a change in circumstance (including the imposition of
alternative or additional requirements) which in the reasonable opinion
of the applicable Lender or the Administrative Agent renders or will
render either formula (or any element thereof or any defined term used
therein) inappropriate or inapplicable, the Administrative Agent may
vary the same after notice to the Company. Any such variation shall, in
the absence of manifest error, be conclusive and binding on the parties
and shall apply from the date specified in such notice.
For the purposes of this Schedule:
The terms "Eligible Liabilities" and "Special Deposits" shall bear the
meanings given to them under or pursuant to the Act by the Bank of
England (as appropriate), on the day of the application of the formula;
"Facility Office" means the office or offices notified by a Lender to
the Administrative Agent in writing on or before the date it becomes a
Lender (or, following that date, by not less than five Business Days'
written notice) as the office or offices through which it will perform
its obligations under this Agreement.
"Fee Base" has the meaning given to it in the Fees Regulations;
"Fees Regulations" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 2001; or
(b) such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
SCHEDULE V
Existing Liens
None
SCHEDULE VI
Excluded Assets
1. Coated and Supercalendered Papers Business, including the coated
groundwood mill and associated assets in Parana, Brazil
2. Beverage Packaging Business, including the Pine Bluff, AR, mill
3. Kraft Papers Business, including the Roanoke Rapids, NC, mill
4. Arizona Chemical and its Subsidiaries (and any other Subsidiary of the
Company that is considered part of the business of Arizona Chemical
Company on the date hereof)
5. The 6.5 million acres of U.S. forestlands owned by the Company and its
Subsidiaries
6. Wood Products Business
EXHIBIT A
[Form of Assignment and Assumption]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and
Assumption") is dated as of the Effective Date set forth below and is entered
into by and between [Insert name of Assignor] (the "Assignor") and [Insert name
of Assignee] (the "Assignee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the "364-Day Credit Agreement"), receipt of a copy of which is
hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the 364-Day Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all of the
Assignor's rights and obligations in its capacity as a Lender under the 364-Day
Credit Agreement and any other documents or instruments delivered pursuant
thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under
the facility identified below and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right of
the Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the 364-Day Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________
[and is an Affiliate/Approved Fund
of [identify Lender](1)]
3. Borrower: ______________________
_________________________________
(1) Select as applicable.
- 2-
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the
administrative agent under the
Credit Agreement
5. Credit Agreement: The $500,000,000 Credit Agreement dated
as of March 31, 2006 between
International Paper Company, the Lenders
parties thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent
6. Assigned Interest:
-------------------- --------------------- ----------------- -------------------
Facility Assigned Aggregate Amount of Amount of Percentage Assigned
Commitment/Loans for Commitment/Loans of Commitment/
all Lenders Assigned Loans(2)
-------------------- --------------------- ----------------- -------------------
Revolving Credit
Commitments $ $ %
-------------------- --------------------- ----------------- -------------------
Competitive Loans $ $ %
-------------------- --------------------- ----------------- -------------------
Effective Date (herein, the "Effective Date"): _____________ ___,
20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE
DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-----------------------------------
Title:
____________________________
(2) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
- 3 -
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-----------------------------------
Title:
[Consented to and](3) Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By
-----------------------------------
Title:
[Consented to:](4)
INTERNATIONAL PAPER COMPANY
By
-----------------------------------
Title:
____________________________
(3) To be added only if the consent of the Administrative Agent is required
by the terms of the Credit Agreement.
(4) To be added only if the consent of the Borrower is required by the terms
of the Credit Agreement.
ANNEX 1
$500,000,000 364-DAY CREDIT AGREEMENT DATED AS OF MARCH 31, 2006
BETWEEN INTERNATIONAL PAPER COMPANY, CERTAIN LENDERS PARTY
THERETO AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the 364-Day Credit Agreement, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
364-Day Credit Agreement, (iii) the financial condition of the Borrower, any of
its Subsidiaries or Affiliates or any other Person obligated in respect of the
364-Day Credit Agreement or (iv) the performance or observance by the Borrower,
any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under the 364-Day Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the 364-Day Credit
Agreement, (ii) it satisfies the requirements, if any, specified in the 364-Day
Credit Agreement that are required to be satisfied by it in order to acquire the
Assigned Interest and become a Lender, (iii) from and after the Effective Date,
it shall be bound by the provisions of the 364-Day Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the 364-Day
Credit Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached to this Assignment
and Assumption is any documentation required to be delivered by it pursuant to
the terms of the 364-Day Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor 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 the Credit
Agreement, and (ii) it will perform in accordance with their terms all of the
- 2 -
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of New York.
EXHIBIT B-1
[Form of Opinion of Counsel to the Company]
[_______], 2006
To the Lenders party to the 364-Day Credit Agreement
referred to below and JPMorgan Chase Bank, N.A., as
Administrative Agent
Ladies and Gentlemen:
I have acted as counsel to International Paper Company (the
"Company") in connection with the 364-Day Credit Agreement (the "364-Day Credit
Agreement") dated as of March 31, 2006, between the Company, the lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, providing for
loans to be made by said lenders to the Company, and to Approved Borrowers (as
defined therein), in an aggregate principal amount not exceeding $500,000,000.
Terms defined in the 364-Day Credit Agreement are used herein as defined
therein. This opinion letter is being delivered pursuant to Section 5.01(b) of
the 364-Day Credit Agreement.
In rendering the opinions expressed below, I have examined the
following agreements, instruments and other documents:
(a) the 364-Day Credit Agreement; and
(b) such records of the Company and such other documents
as I have deemed necessary as a basis for the
opinions expressed below.
In my examination, I have assumed the genuineness of all
signatures, the authenticity of all documents submitted to me as originals and
the conformity with authentic original documents of all documents submitted to
me as copies. When relevant facts were not independently established, I have
relied upon statements of governmental officials and upon representations made
in or pursuant to the 364-Day Credit Agreement and certificates of appropriate
representatives of the Company.
In rendering the opinions expressed below, I have assumed,
with respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Company):
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
- 2 -
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of New York
and has the necessary corporate power to make and perform the 364-Day
Credit Agreement, to borrow under, and to guarantee borrowings by
Approved Borrowers under the 364-Day Credit Agreement. Each Material
Subsidiary of the Company (with the exceptions of IP Finance (Barbados)
Limited, Weldwood of Canada, IP Investment France, Inc., International
Paper do Brasil Ltda and Aussedat Rey S.A., as to which at your request
I express no opinion) is a corporation duly incorporated, or a
partnership or other entity duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of
organization. The Company and the Material Subsidiaries of the Company
are duly qualified to transact business in all jurisdictions where
failure so to qualify would have a Material Adverse Effect.
2. The making and performance by the Company of the 364-Day
Credit Agreement and the borrowings and guarantee by the Company under
the 364-Day Credit Agreement have been duly authorized by all necessary
legal action, and do not and will not violate any provision of law or
regulation or any provision of its charter or by-laws or any other
constitutive documents of the Company or result in the breach of, or
constitute a default or require any consent under, any indenture or
other agreement or instrument to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary or its properties may
be bound.
3. The 364-Day Credit Agreement constitutes the legal, valid
and binding obligation of the Company enforceable in accordance with
its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws of general applicability affecting the
enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4. Except as disclosed to the Lenders in writing prior to the
date hereof, the legal or arbitral proceedings, and proceedings by or
before any governmental or regulatory authority or agency, pending or
(to my knowledge) threatened against or affecting the Company and/or
any of its Subsidiaries, or any properties or rights of the Company
and/or any of its Subsidiaries will not result in imposition of
liability or assessment against (including seizure of) property that
would result in a Material Adverse Effect.
- 3 -
5. No authorizations, consents, approvals, licenses, filings
or registrations with, any governmental or regulatory authority or
agency are required in connection with the execution, delivery or
performance by the Company of the 364-Day Credit Agreement.
6. Neither the Company nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the 364-Day Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the 364-Day Credit
Agreement to the effect that terms may not be waived or modified except
in writing may be limited under certain circumstances.
(C) I express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.17(d) of the 364-Day
Credit Agreement, (iii) the first sentence of Section 9.09(b) of the
364-Day Credit Agreement, insofar as such sentence relates to the
subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to
the 364-Day Credit Agreement or (iv) Section 9.14 of the 364-Day Credit
Agreement.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America, the Delaware General Corporation
Law and the law of the State of New York, and I do not express any opinion as to
the laws of any other jurisdiction.
At the request of my clients, this opinion letter is, pursuant
to Section 5.01(b) of the 364-Day Credit Agreement, provided to you by me in my
capacity as counsel to the Company and may not be relied upon by any Person for
any purpose other than in connection with the transactions contemplated by the
364-Day Credit Agreement without, in each instance, my prior written consent.
Very truly yours,
EXHIBIT B-2
[Form of Opinion of Counsel to any Approved Borrower]
[----------, ----]
To the Lenders party to the 364-Day Credit Agreement
referred to below and JPMorgan Chase Bank, N.A., as
Administrative Agent
Ladies and Gentlemen:
[I/We] have acted as counsel(5) to [Name of Approved Borrower]
(the "Approved Borrower") in connection with the 364-Day Credit Agreement (the
"364-Day Credit Agreement") dated as of March 31, 2006, between International
Paper Company (the "Company"), the lenders party thereto and JPMorgan Chase
Bank, N.A., as Administrative Agent, providing for loans to be made by said
lenders to the Company, and to Approved Borrowers (as defined therein), in an
aggregate principal amount not exceeding $500,000,000. Terms defined in the
364-Day Credit Agreement are used herein as defined therein. This opinion letter
is being delivered pursuant to Section 5.02(b) of the 364-Day Credit Agreement.
In rendering the opinions expressed below, [I/we] have
examined the following agreements, instruments and other documents:
(a) the 364-Day Credit Agreement;
(b) the Designation Letter with respect to the Approved
Borrower; and
(c) such records of the Approved Borrower and such other
documents as [I/we] have deemed necessary as a basis
for the opinions expressed below.
In [my/our] examination, [I/we] have assumed the genuineness
of all signatures, the authenticity of all documents submitted to [me/us] as
originals and the conformity with authentic original documents of all documents
submitted to [me/us] as copies. When relevant facts were not independently
established, [I/we] have relied upon statements of governmental officials and
upon representations made in or pursuant to the 364-Day Credit Agreement and
certificates of appropriate representatives of the Approved Borrower.
__________________________
(5) If the Approved Borrower is a domestic Subsidiary, this opinion may be
given by the counsel to the Company that renders the opinion set forth
in Exhibit B-1, who may rely on an opinion of local counsel to the
Approved Borrower in the jurisdiction of incorporation of the Approved
Borrower. If the Approved Borrower is a foreign Subsidiary, this
opinion must be given by counsel, satisfactory to the Administrative
Agent, that is admitted to practice in the jurisdiction of
incorporation of the Approved Borrower.
- 2 -
In rendering the opinions expressed below, [I/we] have
assumed, with respect to all of the documents referred to in this opinion
letter, that (except, to the extent set forth in the opinions expressed below,
as to the Approved Borrower):
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as [I/we] have deemed necessary as a basis for the opinions
expressed below, [I am/we are] of the opinion that:
1. The Approved Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of [State/Country]
and has the necessary corporate power to make and perform its
obligations under its Designation Letter, the 364-Day Credit Agreement
and to borrow under the 364-Day Credit Agreement.
2. The making and performance by the Approved Borrower of its
Designation Letter (and the assumption therein of obligations under the
364-Day Credit Agreement) and the borrowings by the Approved Borrower
under the 364-Day Credit Agreement have been duly authorized by all
necessary legal action, and do not and will not violate any provision
of law or regulation or any provision of its charter or by-laws or any
other constitutive documents of the Approved Borrower or result in the
breach of, or constitute a default or require any consent under, any
indenture or other agreement or instrument to which the Approved
Borrower or any of its Subsidiaries is a party or by which the Approved
Borrower or any of its Subsidiaries or its properties may be bound.
3. Its Designation Letter (and, pursuant to the assumption
under such Designation letter, the 364-Day Credit Agreement) each
constitutes the legal, valid and binding obligation of the Approved
Borrower enforceable in accordance with their respective terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
of general applicability affecting the enforcement of creditors' rights
and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
4. No authorizations, consents, approvals, licenses, filings
or registrations with, any governmental or regulatory authority or
agency in [State/Country] are required in connection with the
execution, delivery or performance by the Approved Borrower of its
Designation letter (or of the 364-Day Credit Agreement obligations
assumed therein).
- 3 -
5. In any action or proceeding in any court in [State/Country]
arising out of or relating to the 364-Day Credit Agreement, the
Designation Letter of the Approved Borrower, such court would recognize
and give effect to the provisions of Section 9.09 of the 364-Day Credit
Agreement wherein the parties thereto agree that the 364-Day Credit
Agreement and each Designation Letter shall be governed by, and
construed in accordance with, the laws of the State of New York, United
States of America.
6. The appointment by the Approved Borrower of the Company as
its agent to accept service of process pursuant to Section 9.09(d) of
the 364-Day Credit Agreement and the Designation Letter is a valid
appointment and the empowerment of the Company to act as the Approved
Borrower's representative and attorney-in-fact for the purposes of
signing documents and giving and receiving notices (including notices
of borrowing under Article II of the 364-Day Credit Agreement) in the
Approved Borrower's Designation Letter is a valid and binding
empowerment.
7. It is not necessary under the laws of [State/Country] (i)
in order to enable the Administrative Agent or any Lender to enforce
its rights under the 364-Day Credit Agreement, or (ii) by reason of the
execution, delivery or performance of the Designation Letter of the
Approved Borrower or the 364-Day Credit Agreement that the
Administrative Agent or any Lender should be licensed, qualified or
entitled to carry on business in [State/Country].
8. Neither the Administrative Agent nor any Lender is or will
be deemed to be resident, domiciled, carrying on business or subject to
taxation in [State/Country] by reason only of the execution, delivery,
performance or enforcement of the 364-Day Credit Agreement or the
Designation Letter of the Approved Borrower.
9. If any judgment of a court in or of the State of New York
were rendered against the Approved Borrower in connection with any
action arising out of or relating to the 364-Day Credit Agreement or
the Designation Letter of the Approved Borrower, such judgment would be
recognized and could be sued upon in the courts of [State/Country], and
such courts would grant a judgment which would be enforceable against
the Approved Borrower in [State/Country] without any retrial or
reexamination of the merits of the original action[, provided that the
requirements of [insert relevant statutory provisions] are met].
[10. Except as described in writing to the Lenders prior to
the date of delivery of the Approved Borrower's Designation Letter,
there is no income, stamp or other tax of any country, or of any taxing
authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made by
the Approved Borrower pursuant to the 364-Day Credit Agreement, or is
imposed on or by virtue of the execution, delivery or enforcement of
its Designation Letter. The Approved Borrower is permitted to make all
payments pursuant to the 364-Day Credit Agreement free and clear of all
taxes, and no such payment in the hands of any Lender will be subject
to any tax.
11. Neither the Approved Borrower nor any of its property
has any immunity (sovereign or otherwise) from jurisdiction of any
[Country] court or set-off or any legal
- 4 -
process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise)
under the laws of [Country]
12. To ensure the legality, validity, enforceability or
admissibility in evidence in [Country] of the 364-Day Credit Agreement
or the Designation Letter of the Approved Borrower, it is not necessary
that the 364-Day Credit Agreement, such Designation Letter or any other
document be filed or recorded with any court or other authority in
[Country] or that any stamp or similar tax be paid on or in respect of
the 364-Day Credit Agreement, such Designation Letter or any other
document [other than such filings and recordations that have already
been made and such stamp or similar taxes that have already been
paid.](6)
[The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the 364-Day Credit
Agreement may be limited by (i) laws rendering unenforceable indemnification
contrary to Federal or state securities laws and the public policy underlying
such laws and (ii) laws limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party for, liability for
its own action or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the 364-Day Credit
Agreement to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
[(C) [I/We] express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Lender is located (other than the State of
New York) that limit the interest, fees or other charges such Lender may impose,
(ii) the last sentence of Section 2.17(d) of the 364-Day Credit Agreement, (iii)
the first sentence of Section 9.09(b) of the 364-Day Credit Agreement, insofar
as such sentence relates to the subject matter jurisdiction of the United States
District Court for the Southern District of New York to adjudicate any
controversy related to the 364-Day Credit Agreement or (iv) Section 9.14 of the
364-Day Credit Agreement.](7)
The foregoing opinions are limited to matters involving the
law of [State/Country], and [I/we] do not express any opinion as to the laws of
any other jurisdiction.
At the request of [my/our] clients, this opinion letter is,
pursuant to Section 5.02(b) of the 364-Day Credit Agreement, provided to you by
[me/us] in [my/our] capacity as counsel to the Approved Borrower and may not be
relied upon by any Person for any purpose other than in connection with the
transactions contemplated by the 364-Day Credit Agreement without, in each
instance, [my/our] prior written consent.
Very truly yours,
__________________________
(6) Insert paragraphs 10, 11 and 12 if the Approved Borrower is not a
U.S. Person.
(7) Insert if the Approved Borrower is a domestic Subsidiary.
EXHIBIT C
[Form of Opinion of Special New York Counsel to JPMorgan Chase Bank]
[________] [ ], 2006
To the Lenders party to the 364-Day Credit Agreement
referred to below and JPMorgan Chase Bank, N.A., as
Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan Chase
Bank ("JPMCB") in connection with the 364-Day Credit Agreement (the "364-Day
Credit Agreement") dated as of March 31, 2006, between International Paper
Company (the "Company"), the lenders party thereto and JPMCB, as Administrative
Agent, providing for loans to be made by said lenders to the Company, and to the
Approved Borrowers (as defined therein), in an aggregate principal amount not
exceeding $500,000,000. Terms defined in the 364-Day Credit Agreement are used
herein as defined therein. This opinion letter is being delivered pursuant to
Section 5.01(c) of the 364-Day Credit Agreement.
In rendering the opinions expressed below, we have examined
the 364-Day Credit Agreement. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with authentic original documents of all
documents submitted to us as copies. When relevant facts were not independently
established, we have relied upon representations made in or pursuant to the
364-Day Credit Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except to
the extent set forth in the opinions expressed below
as to the Company) constitute legal, valid, binding
and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the 364-Day Credit Agreement
constitutes the legal, valid and binding obligation of the Company,
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enforceable against the Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and except as the enforceability of the 364-Day Credit
Agreement is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 9.03 of the 364-Day Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party from, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the 364-Day Credit
Agreement to the effect that terms may not be waived or modified except
in writing may be limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.17(d) of the 364-Day
Credit Agreement, (iii) Section 9.09(b) of the 364-Day Credit
Agreement, insofar as such Section relates to the subject matter
jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the
364-Day Credit Agreement, (iv) Section 9.09(c) of the 364-Day Credit
Agreement insofar as such Section relates to the waiver of inconvenient
forum with respect to proceedings in the United States District Court
for the Southern District New York or (v) Section 9.14 of the 364-Day
Credit Agreement.
We wish to point out that (i) a New York statute provides
that a judgment rendered by a court of the State of New York in respect of an
obligation denominated in any Foreign Currency would be rendered in such
Foreign Currency and would be converted into Dollars at the rate of exchange
prevailing on the date of entry of such judgment and (ii) a judgment rendered
by a United States Federal court in the State of New York in respect of an
obligation denominated in a Foreign Currency may be expressed in Dollars
(provided that we express no opinion as to the rate of exchange such court
would apply).
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
At the request of our client, this opinion letter is,
pursuant to Section 5.01(c) of the 364-Day Credit Agreement, provided to
you by us in our capacity as special New York
- 3 -
counsel to JPMCB and may not be relied upon by any Person for any purpose
other than in connection with the transactions contemplated by the 364-Day
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
[Opining and Consultant
Partner's initials]
EXHIBIT D-1
[Form of Designation Letter]
[----------, ----]
To JPMorgan Chase Bank, N.A., as Administrative
Agent party to the 364-Day Credit Agreement
referred to below
Ladies and Gentlemen:
We make reference to the 364-Day Credit Agreement (the
"364-Day Credit Agreement") dated as of March 31, 2006 between International
Paper Company (the "Company"), the lenders named therein and JPMorgan Chase
Bank, N.A., as Administrative Agent. Terms defined in the 364-Day Credit
Agreement are used herein as defined therein.
Subject to the approval of the Lenders (to be evidenced by
your signing at the place below indicated and returning to the Company the
enclosed copy of this letter) the Company hereby designates _________________
(the "Approved Borrower"), a Wholly Owned Consolidated Subsidiary of the
Company, a corporation duly incorporated under the laws of [State/Country], as
an Approved Borrower in accordance with Section 2.01(b) of the 364-Day Credit
Agreement until such designation is terminated in accordance with said Section
2.01(b).
The Approved Borrower hereby accepts the above-designation and
hereby expressly and unconditionally accepts the obligations of a Borrower under
the 364-Day Credit Agreement, adheres to the 364-Day Credit Agreement and agrees
and confirms that, upon your execution and return to the Company of the enclosed
copy of this letter, it shall be a Borrower for purposes of the 364-Day Credit
Agreement and agrees to be bound by and to perform and comply with the terms and
provision of the 364-Day Credit Agreement applicable to it as if it had
originally executed the 364-Day Credit Agreement. The Approved Borrower hereby
authorizes and empowers the Company to act as its representative and
attorney-in-fact for the purposes of signing documents and giving and receiving
notices (including notices of borrowing under Article II of the 364-Day Credit
Agreement) and other communications in connection with the 364-Day Credit
Agreement and the transactions contemplated thereby and further agrees that the
Administrative Agent and the Lenders may conclusively rely on the foregoing
authorization.
The Approved Borrower hereby submits with this Designation
Letter, the statements of earnings, cash flow and common shareholders' equity
(if any) of the Approved Borrower for each of the most recently completed fiscal
quarter and the most recently completed fiscal year of the Approved Borrower and
the related balance sheets as at the end of such quarter and such year,
respectively; and the Company and the Approved Borrower each hereby certifies
that the said financial statements fairly present the financial condition and
results of the operations of such Approved Borrower in accordance with generally
accepted accounting principles, consistently applied, as at the end of, and for,
such quarter and such year, respectively.
- 2 -
The Company hereby represents and warrants to the
Administrative Agent and the Lenders that, before and after giving effect to
this Designation Letter, (i) the representations and warranties set forth in
Part A of Article III of the 364-Day Credit Agreement are true and correct on
the date hereof as if made on and as of the date hereof and (ii) no Default has
occurred and is continuing.
The Approved Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that, after giving effect to this
Designation Letter, the representations and warranties set forth in Part B of
Article III of the 364-Day Credit Agreement are true and correct on the date
hereof.
The Approved Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Designation Letter or the 364-Day Credit Agreement, or for
recognition or enforcement of any judgment, and hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. The Approved Borrower 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. The Approved Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Designation Letter or
the 364-Day Credit Agreement in any court referred to above. The Approved
Borrower 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. The Approved Borrower irrevocably consents to service of
process in the manner provided for notices in Section 9.01 of the 364-Day Credit
Agreement (and for such purpose, the Approved Borrower hereby irrevocably
appoints the Company as its authorized agent to accept such service of process
in New York with respect to this Designation Letter and the 364-Day Credit
Agreement).
The Approved Borrower hereby instructs its counsel to deliver
to the Lenders and the Administrative Agent the opinion referred to in Section
5.02(b) of the 364-Day Credit Agreement.
- 3 -
THE APPROVED BORROWER HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
DESIGNATION LETTER OR THE 364-DAY CREDIT AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). THE APPROVED BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY TO THE 364-DAY CREDIT AGREEMENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND SUCH OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS DESIGNATION LETTER
AND THE 364-DAY CREDIT AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS PARAGRAPH.
INTERNATIONAL PAPER COMPANY
By:
--------------------------------
Title:
[APPROVED BORROWER]
By:
--------------------------------
Title:
Consent and Agree:
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
By:
--------------------------------
Title:
EXHIBIT D-2
[Form of Termination Letter]
----------, ----
To JPMorgan Chase Bank, N.A., as Administrative
Agent party to the 364-Day Credit Agreement
referred to below
Ladies and Gentlemen:
We make reference to the 364-Day Credit Agreement (the
"364-Day Credit Agreement") dated as of March 31, 2006 between International
Paper Company (the "Company"), the lenders named therein and JPMorgan Chase
Bank, N.A., as Administrative Agent. Terms defined in the 364-Day Credit
Agreement are used herein as defined therein.
The Company hereby terminates the status as an Approved
Borrower of __________, a corporation incorporated under the laws of
[State/Country], in accordance with Section 2.01(b) of the 364-Day Credit
Agreement, effective as of the date of receipt of this notice by the
Administrative Agent. The undersigned hereby represent and warrant that all
principal of and interest on all Loans of the above-referenced Approved Borrower
and all other amounts payable by such Approved Borrower pursuant to the 364-Day
Credit Agreement have been paid in full on or prior to the date hereof.
Notwithstanding the foregoing, this Termination Letter shall not affect any
obligation which by the terms of the 364-Day Credit Agreement survives
termination hereof.
INTERNATIONAL PAPER COMPANY
By:
--------------------------------
Title:
